Court Rejects Ashcroft, Backs Suicide Law

Atty. Gen. John Ashcroft lost a major round Wednesday in his attempt to block Oregon’s assisted-suicide law, as a federal appeals court panel ruled that his efforts exceeded his authority.

Since Oregon’s so-called Death With Dignity law went into effect in 1997, 171 people -- most of them with cancer -- have used the law to hasten their deaths, according to the state’s Department of Health Services.

Ashcroft, who began campaigning against Oregon’s law when he was a U.S. senator from Missouri, tried to block it in November 2001 by issuing an order aimed at doctors. The order said physicians who dispensed lethal barbiturates to patients under Oregon’s law would be violating the federal statute designed to restrict narcotics trafficking and illegal diversion of drugs.

Under that policy, the Justice Department would have been able to go to court to strip doctors who assisted in suicides of their right to prescribe medicine.

That effort by Ashcroft “far exceeds the scope of his authority under federal law,” Judge Richard A. Tallman wrote in the opinion for the U.S. 9th Circuit Court of Appeals in San Francisco.

Ashcroft’s “unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide” and is “unlawful and unenforceable,” Tallman wrote.

The 9th Circuit is known for its liberal opinions and has frequently been reversed by the U.S. Supreme Court on high-profile issues.

But in this case Tallman, a former federal prosecutor appointed to the court by President Clinton, is generally considered one of the appeals court’s more conservative members.

Moreover, the Supreme Court considered assisted-suicide cases from two states in the late 1990s, ultimately upholding Oregon’s right to enact its law, so the justices may have little desire to revisit the issue, legal analysts said.

In one of those cases, the high court said that “the earnest and profound debate” around the country “about the morality, legality and practicality of physician-assisted suicide” should be left to state lawmakers.

Oregon is the only state to have enacted a physician-assisted suicide law. Many others, including California, ban the practice.

In order to invoke the law and obtain the lethal barbiturates, a patient must demonstrate to two physicians that he has no more than six months to live. Doctors have to be convinced that a patient is mentally competent to make the decision, and the patient must administer the medicine to himself.

“By criminalizing medical practices specifically authorized under Oregon law, the Ashcroft directive interferes with Oregon’s authority to regulate medical care within its borders,” Tallman wrote.

“The Ashcroft directive not only lacks clear congressional authority, it also violates the plain language of the Controlled Substances Act,” he wrote.

“We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care,” Tallman wrote, referring to assisted suicides. “This case is simply about who gets to decide,” he added, noting that the law had been approved twice by Oregon voters, in 1994 and 1997.

Tallman was joined in the 2-1 opinion by Judge Donald Lay.

The dissenting judge, J. Clifford Wallace, said the court should have accorded “substantial deference” to Ashcroft’s conclusion that physician-assisted suicide did not serve a “legitimate medical purpose.”

Ashcroft had the authority to take the action he did, and “Congress is free to enact legislation limiting or counteracting” the attorney general’s order if it disapproves, Wallace wrote.

Justice Department spokesman Charles Miller said department attorneys were reviewing the decision and would not immediately comment.

Even some legal scholars who are ordinarily in tune with Ashcroft’s positions said they thought the attorney general was on shaky legal ground.

“As someone who often approves of the work of the attorney general and who also thinks assisted suicide is morally indefensible, I understand John Ashcroft’s motivations to intervene in this matter,” said Douglas Kmiec of Pepperdine Law School.

“Yet, on the law, his regulatory intervention was more questionable,” he added. “The Supreme Court rightly held that the issue of assisted suicide is one to be debated and resolved at the state level, and Congress did not clearly provide otherwise in the Controlled Substances Act.”

The ruling was hailed by Oregon officials as well as patients who support the law.

Don James, a 78-year-old retired schoolteacher from Portland who was one of the plaintiffs challenging Ashcroft’s order, said he was delighted with the ruling.

James, who has prostate cancer and is confined to a wheelchair, said he was on heavy medication though he was not yet terminally ill.

“I’m not in a hurry to die. I want to stay active as long as I can,” he said. “I’m not sure what I will do when that moment comes, but I wanted the option” of hastening death.

James, a registered Republican, added, “I resent that Ashcroft meddled in our affairs in this democracy to try to deprive us of something we want.”

George Eighmey, executive director of the Oregon chapter of Compassion in Dying, the organization that led the battle to get the suicide law enacted, also praised the ruling.

“I believe today’s decision by the 9th Circuit has been a huge victory for Oregon and for all Oregonians who believe in end-of-life choices,” he said. “We hope the message is received by Atty. Gen. Ashcroft that it is time for him to keep his hands off Oregon’s law and Oregonians.”

But N. Gregory Hamilton, a doctor from Portland and the former president of Physicians for Compassionate Care, an organization opposed to the Oregon law, denounced the ruling.

“It’s amazing that a federal court would allow any state to nullify federal regulatory authority and federal law,” he said. “If Oregon is allowed to exempt itself from federal law about the misuse of controlled substances for the purposes of overdosing patients, what is to stop any state from exempting itself from other important federal regulations and laws?”

Oregon Right to Life officials also criticized the decision and expressed hope that Ashcroft would appeal further.

Gayle Atteberry, executive director of the group, called the ruling a tragedy.

Some patients who become eligible for the lethal barbiturates “are then abandoned to depression instead of receiving the help they need,” she said.

Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, said, however, that abuses foreseen by the law’s opponents had not occurred in Oregon.

The suicide law has not been used as often as predicted, in part because Oregon’s doctors and nurses have done a good job on end-of-life palliative care, he said.

After voters passed the law, Ashcroft was among several members of Congress who urged then-Atty. Gen. Janet Reno to take action against physicians who applied it. In 1998, Reno said such action was unwarranted. Ashcroft reversed that decision when he became attorney general.

The next day, U.S. District Judge Robert E. Jones in Portland issued a temporary restraining order blocking the Ashcroft directive.

“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

The Justice Department appealed, setting the stage for Wednesday’s ruling.