Oregon law: Court still must decide the assisted-suicide case.

Byline: Tim Christie The Register-Guard

Harriet Miers' withdrawal as a nominee for the U.S. Supreme Court on Thursday means that Justice Sandra Day O'Connor's retirement is on hold for at least another few months.

And that could mean that O'Connor would cast a potentially decisive vote in support of Oregon's physician-assisted suicide law, say legal analysts and supporters of the law. O'Connor has said she plans to stay on the bench until her successor is confirmed.

No one but the justices themselves knows how they'll vote in Gonzales vs. Oregon, the assisted-suicide case argued last month in the Supreme Court. But supporters of the law count O'Connor as sympathetic to the state's case.

"We think Justice O'Connor is likely an advocate for the state's position, and to that extent, if she is, it may well be a benefit to have her continue on the court as long as possible," said Kevin Neely, spokesman for the state Department of Justice.

Teresa Collett, a law professor at the University of St. Thomas in Minneapolis, who wrote a brief against Oregon's law on behalf of the Catholic Medical Association, said she doesn't think O'Connor will get a chance to vote on the case.

"I think it is likely that the case will not have an opinion issued during the time she is sitting," she said.

She cited comments by Justices Anthony Kennedy and Stephen Breyer about the complexity of the case as they weigh concerns to have a coherent national drug policy while permitting states to conduct experiments in social policy.

"I suspect most people believe that O'Connor would vote to affirm the 9th Circuit" and uphold assisted suicide, said Kathryn Tucker of Compassion & Choices, which support's Oregon's law.

"The fact there's a bit more time now increases the chance the opinion will be voted upon, written and issued before a new nominee is seated."

No one knows precisely when the court will render an opinion; they have until their current term ends in June. If O'Connor is still on the bench when the opinion is debated and written, then her vote could count. But if the vote is 5-4, with O'Connor casting the swing vote, then the court could decide to wait for the new justice to be seated, and have the case reargued next term, rather than having an outgoing justice cast the deciding vote in a major case, Tucker said.

At issue in the case is whether then-Attorney General John Ashcroft overstepped his authority in 2001 when he acted to derail Oregon's law.

Ashcroft and federal lawyers argued that assisted suicide is not a legitimate medical practice and that the Controlled Substances Act, a 1971 drug law, gave him authority to act against doctors who prescribed federally controlled drugs to help a dying patient commit suicide.

State lawyers countered that the federal government has let states decide how to regulate the practice of medicine and that nothing in the Controlled Substances Act gave Ashcroft authority to decide what is a legitimate medical practice. U.S. District Judge Robert Jones and the 9th Circuit Court of Appeals sided with Oregon before the case was appealed to the Supreme Court.

During oral arguments last month, O'Connor asked several questions challenging the federal government's position.

She asked U.S. Solicitor General Paul Clement what's to keep another attorney general who opposes the death penalty from going after doctors who provide drugs for an execution.

When Clement suggested that some sections of the Controlled Substances Act gave the attorney general the authority to make public health decisions, O'Connor interrupted him.

"Certainly the practice of medicine by physicians is an area traditionally regulated by the states, is it not?" she asked.

Clement said that was true, and O'Connor continued probing.

"And there is nothing express in the statute suggesting it's designed to put in the hands of the federal government or the attorney general the regulation of the practice of medicine, is there?" she asked. Also true, Clement said.

She returned to the point again when she asked Clement about the scope of the federal government's authority to regulate how doctors prescribe drugs.

`It's a different thing to regulate by saying, `No one can prescribe this substance. It's so lethal, we won't let anyone prescribe it all.' And it's quite different to say ... `If a physician follows the Oregon law, it's not a legitimate practice of medicine.' That's a very different approach.'