U.S. court upholds Ore. assisted-suicide law

Ashcroft overstepped his authority, judges say


A federal appeals court rejected yesterday an effort by the Justice Department to block the only law in the nation authorizing doctors to help their terminally ill patients commit suicide.

The decision, by a divided three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, upheld Oregon's Death with Dignity Act.

The majority used pointed language to rebuke Attorney General John Ashcroft, saying he had overstepped authority.

"The attorney general'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 C. Tallman wrote for the majority.

Charles Miller, a Justice Department spokesman, said lawyers there are reviewing the decision and have not decided on their next move. The government could ask an 11-member panel of the 9th Circuit to rehear the case or try to appeal to the U.S. Supreme Court.

The assisted-suicide law in Oregon, the product of a 1994 voter initiative, allows adults with incurable diseases who are likely to die in six months to obtain lethal drugs from their doctors. The doctors may prescribe but not administer the drugs, and they are granted immunity from liability.

The majority decision stressed that the court was not deciding the morality or appropriateness of assisted suicide.

"We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care," Tallman wrote. "This case is simply about who gets to decide."

The states do, the court ruled.

"The principle that state governments bear the primary responsibility for evaluating physician-assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct," Tallman wrote.

About 30 people a year have used the law to end their lives since it became effective in 1997, according to state records. That represents about one in every thousand deaths in Oregon.

"The main thing is that the people of Oregon made a decision through the democratic process," said Don James, 78, a Portland man dying of cancer. "I don't know yet if I will personally take advantage of it," James said of the law, noting that prostate cancer has spread to his bones and causes considerable pain. "But I want the option."

In 1997, Ashcroft, then a U.S. senator from Missouri, asked Attorney General Janet Reno to declare that physician-assisted suicide involving doctors violated federal law. She declined, saying that individual states should be allowed to regulate their own doctors. When Ashcroft became attorney general in 2001, he reversed Reno's position and issued a directive saying that doctors who prescribe lethal drugs to patients under the Oregon law could face federal sanctions and prosecution.

Some scholars have criticized Ashcroft for what they say is only fitful fidelity to his political philosophy of respect for decentralized government and local decision-making.

Yesterday's decision considered a challenge to Ashcroft's directive brought in 2001 by a doctor, a pharmacist, terminally ill patients and the state of Oregon. Judge Robert E. Jones, of U.S. District Court in Oregon, sided with the plaintiffs in 2002, ordering the Justice Department not to enforce Ashcroft's directive.

In its ruling yesterday, the appeals court panel said that upholding Ashcroft's directive would have a high human toll.

"Doctors will be afraid to write prescriptions sufficient to painlessly hasten death," Tallman wrote. "Pharmacists will fear filling their prescriptions. Patients will be consigned to continued suffering and, according to the declarations of record, may die slow and agonizing deaths."

Kevin Neely, a spokesman for Oregon's attorney general, said the ruling was "a slam-dunk victory for the state of Oregon."

"Decisions regarding medical practice are decisions for the state and the state alone to make," Neely said. "Attorney General Ashcroft simply abused his authority in this matter."

Vikram Amar, a professor at Hastings College of the Law in San Francisco, said it was sometimes hard to divine the Justice Department's guiding philosophy in deciding which state laws to challenge. The department has tried to override state medical marijuana laws, and it has vetoed the decisions of local federal prosecutors who declined to seek the death penalty.

"They haven't explained very well the distinctions they make," Amar said, "and that leaves them open to the charge of hypocrisy."

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