Oregon suicide law comes to high court.

Byline: Tim Christie The Register-Guard

The future of Oregon's eight-year-old experiment with physician-assisted suicide is at stake Wednesday when the U.S. Supreme Court takes up the case of Gonzales vs. Oregon.

The high court will hear arguments on the merits of the Bush administration's efforts to derail Oregon's groundbreaking, voter-approved law that permits dying patients to ingest a lethal dose of medicine prescribed by a physician.

Specifically, the justices will be asked to decide whether physician-assisted suicide is a legitimate medical practice over which the federal government has no authority, or an abuse of federal drug laws by doctors who are flouting the 2,000-year medical tradition to "first do no harm."

At issue is the Controlled Substances Act, the federal drug law cited by then-U.S. Attorney General John Ashcroft when he issued his 2001 directive authorizing federal drug agents to punish Oregon doctors who wrote lethal prescriptions for their dying patients.

The state of Oregon sued Ashcroft, and U.S. District Judge Robert Jones ruled that Ashcroft overstepped his authority. Congress intended the law to control drug abuse and drug trafficking, not to authorize the Justice Department "to establish a national medical practice or act as a national medical board," Jones wrote.

Lawyers for Attorney General Alberto Gonzalez, in their brief to the Supreme Court, counter that using or prescribing barbiturates for suicide is drug abuse. Ashcroft's conclusion that assisting suicide is not a legitimate medical purpose "finds overwhelming support in tradition, history, law and medical expertise," Justice lawyers wrote in their brief to the court.

The case has drawn widespread attention: No fewer than 29 friend-of-the-court briefs have been filed from groups that include Oregon's congressional delegation, the American Civil Liberties Union, the Cato Institute, the state of California, Americans United for Life, the U.S. Conference of Catholic Bishops and the Coalition of Medical Associations.

At stake in the case is the future of physician-assisted suicide, not just in Oregon but in other states as well.

If the high court upholds the legitimacy of Oregon's Death with Dignity Act, other states that have considered passing similar laws, such as California, Vermont and Hawaii, will likely be emboldened to push forward, said George Eighmey, executive director of Compassion & Choices of Oregon, an advocacy group.

"At that point, the momentum is going to change," he said.

A decision upholding Oregon's law also would likely reinvigorate efforts in Congress to overturn the law, he said.

If the justices rule against the physician-assisted suicide law, then it would effectively put an end to the practice in Oregon, at least as now practiced.

"It will effectively bring the openness with which the law is now administered to a screeching halt," Eighmey said. "It will drive underground the practice of aiding people at the end of life to hasten their death."

Such a decision would impose a chilling effect on Oregon doctors who would fear scrutiny by federal drug agents and the loss of their federal license to prescribe drugs, he said.

But even if the Supreme Court overturns Oregon's law, it's unlikely to mark the end of assisted suicide, experts say.

A 1996 study in the New England Journal of Medicine - before Oregon's law took effect - surveyed 2,671 Oregon doctors and found that 21 percent had been asked by patients for a lethal prescription during the previous year. Seven percent, or 187, said they had written such a prescription before voters approved assisted suicide in 1994.

Another study found that many dying Oregonians were taking their deaths into their own hands without resorting to lethal prescriptions.

A survey of hospice nurses published in 2003 found that nearly twice as many dying Oregonians ended their lives by refusing to eat or drink as those who chose assisted suicide.

Oregon Health & Science University researchers surveyed 307 hospice nurses across the state in 2001 and found that 102, or one in three, reported they had cared for a patient in the previous four years who had deliberately hastened death by voluntarily refusing food and drink. The survey found that 55, or 18 percent, of the nurses said they'd cared for a patient who'd chosen assisted suicide.

Gonzales vs. Oregon will be among the first cases heard by new Chief Justice John Roberts Jr., and among the last by retiring Justice Sandra Day O'Connor.

While O'Connor will hear arguments, it's not clear whether she'll be on the bench long enough to be involved in the opinion. If she's retired when the opinion is written, the case could be decided by the remaining eight justices, or the justice who replaces O'Connor could ask the case to be re-argued, said Kathryn Tucker, legal director for Compassion & Choices, which supports assisted suicide.

No one is sure how Roberts views doctor-assisted suicide. But U.S. Sen. Ron Wyden said he came away from a meeting with Roberts before his confirmation with a sense that Roberts was not inclined to overturn the law.

Nothing in the Controlled Substances Act - a keystone of the federal government's challenge to assisted suicide - indicates the law "was aimed at or should be used to overturn or undermine the right of states to regulate medical practice within their borders,' Wyden said.

Larry Dubin, a law professor at University of Detroit Mercy School of Law, said he believes Roberts' judicial philosophy would support the idea that the power of the federal government is more limited than some previous Supreme Court decisions have recognized.

Another justice, Antonin Scalia, gave some indication of his thoughts on the issue when he spoke to law students in 2002 at Lewis & Clark College in Portland.

Scalia told students he believes the issue is one of state's rights, and should not become part of a constitutional battle because it is not based on federal law, 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! We did that twice."

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

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 the law.

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.

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.

What's next: The court will rule on the case before its term ends next June.