A matter of choice.

Byline: The Register-Guard

Today, the U.S. Supreme Court begins its first term under newly confirmed Chief Justice John Roberts by considering a case that is a matter of life and death to Oregonians.

Does the Controlled Substances Act - a law designed to prevent illegal drug trafficking - give the federal government the right to punish doctors who comply with Oregon's twice-approved Death with Dignity Act? Two lower courts have answered that question with a resounding "no." Both the trial and appellate courts ruled that the power to regulate medical practices resides with the states.

But the Bush administration has no problem abandoning traditional conservative Republican support for state's rights when the issue contains religious overtones. Attorney General John Ashcroft in 2001 issued a directive declaring that suicide is not a "legitimate medical purpose."

The Ashcroft directive reversed a 1998 opinion by U.S. Attorney General Janet Reno and allowed the Justice Department to prohibit Oregon doctors from issuing any lethal prescriptions on grounds that the drugs did not qualify as medication under the Controlled Substances Act. Ashcroft threatened to criminally prosecute and revoke the licenses of Oregon physicians who prescribed drugs to patients as authorized by the Death with Dignity law.

Earlier this year, the Supreme Court agreed to review the case at the urging of Ashcroft's successor, Alberto Gonzales. Despite the larger moral and social issues that attend the debate over Oregon's one-of-a-kind statute legalizing physician-assisted suicide, the high court will be focusing on relatively narrow administrative law arguments having to do with deference to the federal government.

Solicitor General Paul Clement will take a position similar to the federal government's successful attack on state medical marijuana laws. The Supreme Court has twice ruled that federal drug laws prohibiting sale or use of marijuana trump state laws legalizing medicinal use of pot. Clement will argue that states also should defer to the federal government's interpretation that the Controlled Substances Act prohibits physicians from prescribing lethal doses of drugs. The Justice Department insists that any other interpretation will inhibit enforcement of uniform national drug standards.

But the high court's history on the issue of doctor-assisted suicide is ambiguous. In 1997, the Supreme Court ruled that there is no constitutional right to hasten one's own death. Nonetheless, justices invited states to experiment with legislation that would allow strictly regulated access to lethal prescriptions.

California and Vermont are poised to proceed with such legislation, modeled closely on Oregon's 1994 Death with Dignity Act. Oregon's law is seen as such a solid blueprint that it's being studied in Britain as the basis for a national law governing physician-assisted suicide.

Advocates for Oregon's pioneering law are correct in insisting that "physician-assisted suicide" is a pejorative mischaracterization. People in the terminal stages of cancer, AIDS or amyotrophic lateral sclerosis do not have a heroic choice between life and death. They are going to die, soon, sometimes horribly.

But in Oregon, they do have the choice between a potentially torturous death or the least-worst death of legally prescribed medication. It is the availability of that choice, as opposed to the exercise of it, that is precious to Oregonians. And it is the twice-confirmed will of a majority of Oregon voters that the Supreme Court must protect.