Justices consider right to die

U.S. challenges Oregon law allowing doctors to prescribe lethal medication


WASHINGTON -- The Supreme Court and its new chief justice, John G. Roberts Jr., heard the Bush administration's challenge to the nation's only "right to die" law yesterday, a case that pits social conservatives against people who believe the terminally ill should be allowed medication that will end their lives.

At issue is whether Oregon or the federal government has the power to decide whether doctors may prescribe lethal doses of medication.

The justices sounded closely split on the question. Roberts sharply questioned lawyers on both sides and did not tip his hand as to how he would vote.

It is the first major test of the Roberts Court, and it might not be decided until President Bush's nominee to replace Justice Sandra Day O'Connor is confirmed by the Senate.

Oregon's voters twice have approved the Death with Dignity Act, which permits an individual with an incurable disease to seek lethal medication from a doctor. Two other physicians must confirm that the patient probably will die within six months and is capable of making an independent decision.

The Oregon law took effect in 1997; since then, 208 people have ended their lives by taking medication.

Social conservatives, including then-Sen. John Ashcroft, a Missouri Republican, and Rep. Henry J. Hyde, an Illinois Republican, opposed the Oregon law because it authorized a form of suicide. Then-President Bill Clinton's attorney general, Janet Reno, refused their pleas to challenge the Oregon law.

The regulation of medicine and the licensing of doctors long has been left to the states.

But shortly after Bush took office in 2001, his new attorney general, Ashcroft, decreed that doctors who prescribe a legal drug for the purpose of ending a life were in violation of federal drug-control laws.

A federal judge in Portland, Ore., and the U.S. Court of Appeals in San Francisco have blocked Ashcroft's decree from taking effect. They said the federal drug-control laws were intended to halt drug traffickers, not to regulate doctors and the practice of medicine.

The case, Gonzales v. Oregon, might tip the issue of states' rights vs. federal power on its head.

Traditionally, conservatives have leaned in favor of the states, while liberals have been more inclined to support federal authority. But to judge by yesterday's arguments, the court's conservatives and liberals appear ready to switch sides when it comes to doctor-assisted suicides.

As a lawyer arguing before the Supreme Court, Roberts was adept at giving crisp, direct answers to questions from the justices. During yesterday's argument, he showed the same skill in posing short, direct questions that highlighted a key point.

Arguing for the Bush administration, U.S. Solicitor General Paul Clement maintained that Congress gave federal authorities the power to regulate how drugs are used: "The most natural reading of the Controlled Substances Act is that this falls within the authority of the attorney general."

Roberts questioned that.

"What's the closest analogue to this?" he asked Clement, pressing for an example of where the U.S. attorney general had overruled the states and their doctors on how legal drugs are used.

Clement paused and then responded that the Food and Drug Administration had objected in the 1970s when several states allowed the use of laetrile as a cancer treatment.

"That's the FDA. What about the attorney general?" Roberts repeated.

Clement could not cite a specific example of where the attorney general had overruled state medical authorities on the use of prescription drugs. Roberts' question highlighted that Ashcroft was claiming a new power to regulate the use of prescription drugs.

Oregon state lawyer Robert M. Atkinson picked up on that point, saying, "For the first time in our history ... a single, unelected federal official has decided what is accepted state medical practice." But Roberts also challenged his claim that state authorities could ignore federal drug laws.

Justice Antonin Scalia, the court's leading conservative, led the attack against Oregon's law and spoke in favor of federal authority.

Justices David H. Souter and Ruth Bader Ginsburg, who are part of the court's liberal wing, responded that federal authorities never claimed such broad power over medicine and drugs. The drug-control law "was about drug abuse, drug pushing," Souter said, not about regulating how doctors used medications.

Along with Souter and Ginsburg, Justices John Paul Stevens, Sandra Day O'Connor and possibly Stephen G. Breyer sounded as though they believe Ashcroft overstepped his bounds.

The case could end in a 4-4 tie if Roberts joins with Scalia and Justices Clarence Thomas and Anthony M. Kennedy in favor of the Bush administration.

O'Connor could create a 5-4 majority in favor of Oregon if a decision were handed down soon. But she plans to step aside as soon as her successor is confirmed by the Senate.

If the decision still is pending, O'Connor's vote would not count. If the court is split 4-4, the justices move to rehear the case before a nine-member court.

David G. Savage writes for the Los Angeles Times.

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