May 7, 2003
U.S. appeals judges questioned whether Attorney General John Ashcroft has authority to revoke the licenses of doctors who help terminally ill Oregonians commit suicide under the state's euthanasia law.
U.S. Circuit Judge Richard Tallman said Oregon's Death With Dignity Act, the only one of its kind in the nation, provides a legal basis for physicians to help people kill themselves.
"Here Oregon has supplied a law that says our physicians can do this," Tallman said at today's hearing in Portland on Oregon's lawsuit against Ashcroft, who says assisting suicide isn't a legitimate medical practice under federal drug laws. "Has Congress expressly authorized the AG to occupy the field?"
The fight over Oregon's law, now before a three-judge panel of the 9th U.S. Circuit Court of Appeals, pits federal drug laws against a state initiative approved by voters. The case likely will be appealed to the U.S. Supreme Court regardless of how the 9th Circuit rules. Over 100 Oregonians have taken their lives since the law was enacted in 1997; 38 died last year.
Deputy Assistant Attorney General Gregory Katsas said Ashcroft's position is supported by 2,000 years of medical tradition that doctors should help heal not kill.
"It is Oregon that seeks to alter the traditional balance when it seeks to adopt an idiosyncratic, novel definition of medicine," said Katsas.
Voters in Oregon have twice approved assisted-suicide measures. State officials say federal drug laws are aimed at preventing drug dealing and, in enforcing them, Ashcroft must take into account state medical laws.
"Congress did intend to incorporate state law standards" in the federal Controlled Substances Act, said Robert Rocklin, an Oregon assistant attorney general.
The U.S. Supreme Court in 1997 upheld a Washington state law banning doctor assisted suicide and said decisions about suicide laws should be made on the state level, Rocklin said.
Ashcroft issued a directive in 2001 to strip the licenses to practice from doctors who write prescriptions to assist in suicides, reversing the policy of the Clinton administration. Oregon sued to block the order and a federal judge last year sided with the state.
"It could be that in a few months the new attorney general will go the other way," U.S. Circuit Judge Donald P. Lay said at today's hearing. "Is there no finality?'
Katsas replied: "Agencies are entitled to change their position."
The appeals court panel likely will issue a decision by August.
Tallman said Ashcroft should have met with Oregon officials before issuing his directive.
"Why should we give as much deference to this interpretative rule as we might have if he had had given a full and fair opportunity to participate?" the judge said.
U.S. Circuit Judge J. Clifford Wallace voiced support for the Justice Department's argument that federal laws can't bend to accommodate differing state interpretations of what constitutes a legitimate medical practice. "And if there are 50 different standards?" he asked at one point.
Oregon maintains that terminally ill people should have access to medications to alleviate suffering. The case raises similar states' rights concerns as California's medical marijuana law, which lets seriously ill people use the drug, for example, to suppress nausea caused by chemotherapy treatment of cancer. The 9th Circuit ruled last year that U.S. drug agents can't revoke the licenses of doctors who recommend marijuana to patients.
The appeals court has jurisdiction in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Oregon's law took effect in 1997 and survived two attempts by Congress to pass bills that would make it illegal.
"I think I ought to have the choice," said Michael Vander Kam, who has multiple sclerosis and uses a wheelchair. "If I'm in excruciating pain, I want to be able to check out with dignity."
Last Updated: May 7, 2003 17:12 EDT
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