State lawyers press defense of suicide law.

Byline: TIM CHRISTIE The Register-Guard

U.S. Attorney General John Ashcroft overstepped his authority and that of the federal government when he moved to derail Oregon's doctor-assisted suicide law, lawyers for the state argued Friday.

Federal lawyers, meanwhile, argue that Oregon has no legal standing to challenge Ashcroft's Nov. 6 directive, and that the attorney general has legal authority to decide how federal drug law will be enforced.

The arguments were made in briefs filed Friday in U.S. District Court in Portland in preparation for a hearing Tuesday before federal Judge Robert Jones.

Jones issued a temporary restraining order against Ashcroft on Nov. 8, two days after the nation's top law enforcement officer authorized federal drug agents to investigate and suspend the federal licenses of doctors who prescribe federally controlled drugs to help terminally ill patients end their lives.

State Attorney General Hardy Myers and his lawyers will ask Jones on Tuesday to grant a preliminary injunction - in effect, to put Ashcroft's order on ice until a lawsuit against the federal government is decided. The suit was filed by Myers and joined by four dying patients, a doctor and a pharmacist.

The case is expected to spend three to four years in the courts and likely will land before the U.S. Supreme Court, said George Eighmey, executive director of Compassion in Dying, an Oregon group that supports doctor-assisted suicide.

Ashcroft's directive, in which he found that assisted suicide is not a "legitimate medical purpose" under the federal Controlled Substances Act, effectively blocked Oregon's voter-approved law, the only one of its kind in the nation.

It sparked an uproar of criticism from doctors' groups, many of the state's politicians and groups that support the law. They said the policy stomped on the will of Oregon voters and would discourage doctors from aggressively treating pain in dying patients.

Religious and anti-abortion groups hailed the new policy, noting that Ashcroft specifically said that pain management is protected and promoted as proper medical treatment.

To prevail Tuesday, Oregon's lawyers have to show first that they have a legitimate shot at ultimately winning the case, and second, that irreparable harm will occur if the injunction is not granted.

"Hopefully the judge will agree that in terms of physician-assisted suicide, not granting the injunction would be irreparable harm," said Kevin Neely, spokesman for the state Justice Department. "The injunction is critical for the citizens of Oregon because the harm done is harm we will not be able to change."

In the brief filed Friday, Oregon's lawyers argued that Congress did not intend to give the U.S. attorney general authority to decide whether a state's medical practices were legitimate - and even if it wanted to, Congress has no constitutional authority to regulate the medical practices of Oregon doctors.

The brief filed by the U.S. Justice Department was not made available Friday. Susan Dryden, the department's deputy director of public affairs in Washington, D.C., did not return phone calls from The Register-Guard.

In an earlier brief and in court, federal attorneys argued that the greater harm would result if Ashcroft's order was put on hold because Oregonians would continue to die from assisted suicide. Jones rejected that argument, noting that, because Ashcroft's new policy was based on a legal opinion dated June 29, the matter must not be that urgent to the Bush administration.

The federal attorneys also argue that Oregon has no standing to challenge Ashcroft's directive.

They say the Controlled Substances Act authorized the attorney general to write and enforce any rules necessary to enforce the law. And they say that Congress in 1984 amended the law to strengthen the ability of the Drug Enforcement Administration to control prescription drugs.