Assisted suicide upheld.

Byline: Tim Christie The Register-Guard

The U.S. Supreme Court on Tuesday rebuffed a Bush administration effort to upend Oregon's Death with Dignity Act, capping a four-year battle over the nation's only law that permits physician-assisted suicide.

The 6-3 ruling means Oregon doctors can continue to prescribe lethal doses of medicine to dying patients without fear that federal drug agents will come knocking on their doors.

Advocates of assisted suicide hailed the ruling as a major victory and predicted it would embolden other states, such as California and Vermont, to follow Oregon's lead. Opponents decried the decision and expressed hope that Congress would pass a law to block assisted suicide.

The justices found that then-Attorney General John Ashcroft overstepped his authority in 2001 when he directed federal agents to investigate Oregon doctors suspected of participating in the assisted suicide law, and sought to revoke their licenses to prescribe federally controlled drugs if they were found to have prescribed lethal doses.

Ashcroft said assisted suicide was not a legitimate medical practice, and that the Controlled Substances Act, a law intended to curb drug abuse and trafficking, authorized him to move against Oregon's law.

"The idea that Congress gave the attorney general such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable," Justice Anthony Kennedy wrote for the majority.

He quoted an earlier Supreme Court case: "Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions - it does not, one might say, hide elephants in mouseholes."

Kennedy was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer and retiring Justice Sandra Day O'Connor. The dissenting opinion was written by Justice Antonin Scalia and signed by Chief Justice John Roberts and Justice Clarence Thomas; Thomas also wrote a separate dissent.

"If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death," Scalia wrote.

Scalia said the majority's opinion "is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business," adding that it was easy to sympathize with that position.

But, he said, the federal government has long used its powers "for the purpose of protecting public morality," and that Congress granted the executive branch authority to prevent assisted suicide.

The ruling was the first major case for Roberts, who was sworn in last fall, and one of the last for O'Connor, who will step down soon after Samuel Alito is confirmed by the U.S. Senate.

Robert Kenneth of Portland, a spokesman for a group known as Death with Dignity, said he was ``very pleased and relieved'' by the high court's decision.

``I couldn't be happier. I am a little surprised given the nature of the court. I knew we could rely on Sandra Day O'Connor to give balance to this issue. This is a remarkable ruling as she steps down and retires,'' Kenneth said.

The Oregon attorney general's office, which had urged the high court to uphold the assisted suicide law in oral arguments last fall, said Tuesday's ruling removes any doubts about the legality of physician aid-in-dying.

``For Oregon's physicians and pharmacists, as well as patients and their families, today's ruling confirms that Oregon's law is valid and that they can act under it without fear of federal sanctions,'' state Solictor General Mary Williams said.

The issue is likely to be taken up by Congress, said Oregon Sen. Ron Wyden, a Democrat who threatened filibusters to block earlier efforts intended to cripple the Oregon law.

"Most of the same groups that opposed the Oregon law initially are still out there," he said, "and my sense is with the 2006 election coming up and the sparring under way for the 2008 presidential campaign, there's still the potential for folks to organize, and to again try to undermine the Oregon law."

He said if a law is introduced, it would likely pass the House quickly. But if it gets to the Senate, Wyden said, he would again filibuster to block such a law.

Sen. Gordon Smith, an Oregon Republican and longtime opponent of assisted suicide, signaled that he would not support a bill that would block assisted suicide, as he has in the past. He said in a statement that the issue is "now settled law."

"Regardless of my personal position on assisted suicide, Oregon's law has been tested at every branch of our government and the judgment of Oregon's voters has been affirmed," he said. "I accept the Supreme Court's decision and Congress should do the same."

U.S. Rep. Peter DeFazio, a Springfield Democrat, said the ruling "will finally bring an end to repeated attempts by the Bush administration to overturn the will of Oregon's voters, infringe upon the rights of states, intrude into the difficult decisions made between patients and their doctors, and set back pain management decades."

Rep. Earl Blumenauer, a Portland Democrat, called the ruling ``good news for Oregonians'' and said he hoped the strong 6-3 majority ``makes a difference'' in persuading opponents that the law has solid support.

``I'm hopeful it will make it less likely that we will have these horrific Terri Schiavo-like circuses in the future,'' Blumenauer said.

Still, Blumenauer said he expected congressional opponents to introduce bills outlawing assisted suicide.

``At a time when some people in Washington, D.C., would very much like to change the subject - they don't want to talk about the war in Iraq and have seen conservative icons tarnished - this has been an effective tool in the past to change the subject and mobilize some people,'' he said.

``I would hope it's not so much a battle as a discussion,'' Blumenauer added. ``I would hope it's not a struggle of people trying to impose their narrow views.''

Rep. Greg Walden, a Hood River Republican, said he opposes assisted suicide but would not try to overturn what Oregon voters have twice affirmed as law.

Proponents were heartened by the decision and predicted it would encourage other states to follow Oregon's lead.

The high court decision "removes a tremendous obstacle" to other states considering assisted suicide, said Barbara Coombs Lee, a chief petitioner for the law and co-chief executive officer of the advocacy group Compassion & Choices. Assisted suicide bills are currently pending before the California and Vermont legislatures.

"The Oregon experience makes it clear: This can be done reasonably, responsibly, in a way that improves end-of-life care, that harms no one," Lee said.

Opponents said they were disappointed in the decision and expressed concern the law was being abused by family members and doctors of terminally ill patients who are depressed or mentally ill.

"This is a step backward," said Dr. William Toffler, a Portland family practice physician and national director of Physicians for Compassionate Care.

"As far as I'm concerned, Oregon patients are the losers in this," said Gayle Atteberry, executive director of Oregon Right to Life.

The high court's ruling was "very narrow," she said, and should not be construed as an endorsement of assisted suicide. She was hopeful Congress would pass a law to block the practice.

Portland Archbishop John Vlazny said the Supreme Court's decision "continues to distance our national judicial precedents from respect for life."

"The failure of our governmental structures to prevent doctors from violating medicine's historic ethical prohibition - do no harm - is a tragic error of immense proportion and significance," he said in a statement.

White House spokesman Scott McClellan said President Bush was disappointed in the decision. ``The president remains fully committed to building a culture of life, a culture of life that is built on valuing life at all stages,'' he said.

Valerie Vollmar, a Willamette University law professor who has closely followed the case, said the decision is very technical and focuses on the extent of deference that Congress should grant to the attorney general, she said.

"I would have expected a conclusion such as the one they arrived at, which is that Congress did not intend to enable the attorney general to make a decision such as what constitutes a legitimate medical practice," she said.

"Ashcroft made a bold and bald assertion of executive power, and the court rejected that in terms that amounted to scolding," said Nico Van Aelstyn, an attorney for patients in the case.

One of those patients, Charlene Andrews, a 68-year-old Salem woman who has been battling breast cancer since 2000, said she was heartened when she heard the high court upheld Oregon's law.

"It gives me a lot of peace of mind, knowing that there are still some judges who still feel compassion for the human needs of people," she said.

Andrews, who is divorced, a retired teacher, mother of two and grandmother of four, has been on continuous chemotherapy treatment for four years, and she said, "I'm still kicking and still playing tennis and still walking."

When the time comes, Andrews said, she wants to decide how she dies.

"When you have terminal cancer, you know when your treatment options are up," she said. "You know when you're done. So what if I die two weeks earlier or a week earlier. At least there's some dignity to it, with my family around me. ... I don't want to wait until I'm in a coma and have no control over my body."

The Associated Press contributed to this report.

How the Supreme Court voted

Justices ruled 6-3. New Chief Justice John Roberts joined conservative Justices Clarence Thomas and Antonin Scalia in the dissent.

What it means

Oregon physicians can continue to provide lethal doses of medicine to dying patients without fear of federal investigation. The law says that only people with incurable diseases and of sound mind may take their own lives.

What's next

Some backers of Oregon's law say opponents are likely to urge Congress to pass a law to ban assisted suicide nationwide.

DEATH WITH DIGNITY

A short history of Oregon's physician-assisted suicide law:

November 1994: Oregon voters pass the Death with Dignity Act, the first state to legalize physician-assisted suicide. Opponents immediately challenge the law in court.

November 1997: After the U.S. Supreme Court refuses to hear a challenge to the law, Oregon voters reject a ballot measure to repeal the law, with 60 percent voting to retain it.

March 1998: A Portland woman with breast cancer becomes the first to use the law.

June 1998: U.S. Attorney General Janet Reno rules that federal drug agents do not have authority to revoke the prescribing rights of Oregon physicians who use the law on behalf of their patients, and that prescriptions written under the law constitute a legitimate medical purpose.

November 2001: U.S. Attorney General John Ashcroft issues a directive that finds Oregon's law in violation of the Controlled Substance Act, and authorizes federal drug agents to investigate Oregon doctors who prescribe lethal doses for dying patients. The state of Oregon immediately sues in U.S. District Court, and a judge issues a temporary restraining order to keep the directive from taking effect.

April 2002: U.S. District Judge Robert Jones upholds the Death With Dignity Act, finding that Ashcroft overstepped his authority in attempting to stifle the law.

September 2002: Ashcroft appeals the case to the 9th U.S. Circuit Court of Appeals.

May 2004: A three-judge panel of the 9th Circuit denies Ashcroft's appeal and uphold's Oregon's law.

November 2004: Ashcroft appeals the 9th Circuit's decision to the U.S. Supreme Court.

February 2005: The Supreme Court agrees to hear the case.

October 2005: The high court, with newly confirmed Chief Justice John Roberts Jr. presiding, hears oral arguments in the case, now known as Alberto R. Gonzales, Attorney General, et al, vs. State of Oregon, et al.

January 2006: The Supreme Court, in a 6-3 ruling, upholds the Oregon law, agreeing with lower court rulings that Ashcroft overstepped his authority.