Suicide law goes to high court.

Byline: Tim Christie The Register-Guard

The fate of Oregon's ground-breaking assisted-suicide law is now in the hands of the U.S. Supreme Court.

The court, filled with graying members and led by an 80-year-old chief justice who is battling thyroid cancer, agreed Tuesday to hear a challenge by the Bush administration to Oregon's law. That law permits a terminally ill patient to commit suicide with drugs prescribed by his or her doctor.

The justices will hear arguments in the fall on whether 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 upending the 2,000-year medical tradition to "first do no harm.'

They'll be reviewing a 2002 decision by U.S. District Judge Robert Jones of Portland, who rebuked then-U.S. Attorney General John Ashcroft for his effort to hobble the Oregon law, and a 9th U.S. Circuit Court of Appeals ruling that upheld Jones' opinion.

Jones ruled that Ashcroft overstepped his authority when he issued a directive in 2001 that found that assisted suicide was `not a legitimate medical purpose' under the Controlled Substances Act. The directive authorized federal drug agents to investigate - and to revoke the license to prescribe narcotics - of doctors who participated in the law.

"To allow an attorney general - an appointed executive whose tenure depends entirely on whatever administration occupies the White House - to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary," Jones wrote.

A three-judge panel of the 9th Circuit Court of Appeals upheld Jones' ruling on a 2-1 vote in 2004. Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law," Judge Richard Tallman wrote.

Oregon voters have approved assisted suicide twice, first in 1994 and again in 1997. Since the law took effect in 1998, 171 people have taken their lives with the help of a doctor, according to the state's most recent annual report, which came out last March. Most of these people had cancer.

The numbers have trended upward in recent years, reaching a high in 2003 of 42 suicides, which amounted to one-seventh of 1 percent of the 31,000 deaths in Oregon that year.

The law applies only to people with less than six months to live, and who are of sound mind, based on examinations by two doctors. After a waiting period, they get a prescription for pentobarbital. Dissolved in liquid or pudding, a 10,000-milligram dose of the barbiturate induces a deep, irreversible coma within minutes; death follows soon after.

Dr. Peter Patricelli, a Eugene family physician who has assisted in more than 20 suicides since 1998, said he is saddened that Oregon's law is still the subject of a legal battle.

"I think it's sad the whole thing is still being pursued and that people can't accept that in fact there are a very small percentage of people who find comfort in having some control over the last days of their lives," he said.

But, he added, there may be a silver lining to the Supreme Court's decision to hear the case: It will stifle efforts in Congress to shut down the Oregon law. "It has potential to have a finality to it that would not be there otherwise," he said.

Gayle Atteberry of Eugene, executive director of Oregon Right to Life, said she's not surprised that the Supreme Court agreed to hear the case.

"It's a pressing social question," she said.

The question before the court, as she sees it, is whether Oregonians have the right to overturn or ignore an existing federal law, the Controlled Substance Act.

"It would be analogous to Oregonians saying we don't like the Clean Water Act, so we're going to dump Eugene's sewage into the Willamette River," she said.

Oregon Gov. Ted Kulongoski, a Democrat, said he was disappointed that the Supreme Court agreed to hear the Bush administration's appeal, noting that Oregon voters have approved the law twice, and courts have upheld it twice.

"While politics has driven the appeals of the lower courts' decisions on this law, I am confident that now that politics are put aside, the Supreme Court will review the arguments of this case and ultimately side with the rights of Oregonians as citizens of a sovereign state," he said.

Dr. Kenneth Stevens, spokesman for Physicians for Compassionate Care, which opposes Oregon's law, said he hopes the high court will toss out the law on the grounds that giving lethal prescriptions is not a legitimate medical practice.

"We don't believe that any state should be permitted to unilaterally exempt itself from federal law forbidding the misuse of federally controlled substances to overdose vulnerable patients," he said.

Valerie Vollmar, a law professor at Willamette University in Salem, has closely followed the history of Oregon's law. She said she was surprised that the high court agreed to hear the case because the lower court rulings decided the case, not based on broad constitutional issues, but on relatively narrow legal ground: What was the congressional intent behind the Controlled Substance Act.

"It's also possible the court feels the issue is so important it should say something," she said.

Had the justices declined to hear the case, then the 9th Circuit ruling would be binding only in the nine Western states, including Oregon, covered by the appeals court, she said.

Eric Rakowski, a law professor at the University of California at Berkeley, said he's puzzled as to why the Supreme Court would take the case. The court normally agrees to hear a case only if there's conflict among lower courts, or if there's an important question of constitutional law to be answered, he said. Neither is true with the Oregon case, in which a federal statute, the Controlled Substances Act, is at issue.

"Usually if it's a statutory question and there's no conflict (among lower courts), the Supreme Court would hold off and leave it up to Congress to change the law," he said. "Ordinarily, the Supreme Court isn't going to decide issues they don't have to decide."

This is ground this Supreme Court has covered before. In 1997, the same nine justices unanimously ruled that individuals have no constitutional right to die and upheld state bans on physician-assisted suicide. But Chief Justice William Rehnquist's opinion said individual states could decide to permit the practice.

The Associated Press contributed to this report

PHYSICIAN-ASSISTED SUICIDE TIMELINE

1994: Oregon voters approve a law allowing doctors to prescribe a lethal dose of drugs so that terminally ill patients can hasten their death. The law is placed on hold because of legal challenges.

1997: The U.S. Supreme Court rules that individuals have no constitutional right to die, upholding state bans on physician-assisted suicide; but the court also finds that individual states could decide to permit the practice.

1997: Voting for a second time, Oregon voters affirm physician-assisted suicide. It applies to patients with less than six months to live who are of sound mind, based on examinations by two doctors.

1998: Gov. John Kitzhaber signs the law; a total of 16 Oregonians use the law to commit suicide.

1999-2000: A total of 54 Oregonians - 27 in 1999 and 27 in 2000 - hasten their deaths with a lethal prescription.

2001: U.S. Attorney General John Ashcroft issues a directive to states that assisted suicide is not a legitimate medical purpose and authorizes federal drug agents to investigate and revoke the drug licenses of doctors who participate in the law. Meanwhile, 21 Oregonians end their lives under the law.

2002: U.S. District Judge Robert Jones rules that Ashcroft overstepped his authority with his 2001 directive, and Ashcroft's Justice Department appeals Jones' ruling to the 9th Circuit Court of Appeals. A total of 38 Oregonians commit suicide with a doctor's aid.

2003: A three-judge panel of the 9th Circuit hears arguments in Portland. A total of 42 Oregonians kill themselves using the law.

2004: The 9th Circuit upholds Jones' ruling on a 2-1 ruling. Ashcroft, on the same day he announced his resignation, appeals the decision to the U.S. Supreme Court.

2005: The Supreme Court agrees to hear the appeal.