- The Washington Times - Thursday, May 27, 2004

A federal appeals court yesterday upheld Oregon’s assisted-suicide law, saying U.S. Attorney General John Ashcroft’s bid to outlaw it “far exceeds the scope of his authority under federal law.”

The 2-to-1 ruling by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said physicians in Oregon can continue to prescribe lethal doses of medication to mentally competent, terminally ill patients without facing sanctions or federal criminal prosecutions.

Opponents of assisted suicide warned that the panel’s ruling would allow states to obstruct federal drug laws.

Oregon is the only state that allows physician-assisted suicide. Its law, twice approved in referendums by Oregon voters, allows doctors to prescribe deadly drugs for those wishing to kill themselves, although it does not permit physicians to directly participate in acts of suicide.

“The attorney general’s unilateral attempt to repudiate 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 in his opinion, joined by Judge Donald Lay.

Judge Tallman was appointed in 2000 by President Clinton. Judge Lay was a 1966 appointee of President Lyndon B. Johnson. Judge J. Clifford Wallace, who dissented from the ruling, was appointed by President Nixon in 1972.

Charles Miller, a spokesman for Mr. Ashcroft, said the Justice Department is reviewing whether to appeal the 9th Circuit ruling. But “no determination has been made as to what the next step will be.”

Dr. N. Gregory Hamilton, an Oregon psychiatrist and a leading opponent of that state’s assisted-suicide law, said yesterday he thought both sides in the case were prepared to appeal to the U.S. Supreme Court if they lost in the 9th Circuit.

“If this decision is allowed to stand, any state can exempt itself from federal drug laws … as Oregon has done,” he said.

Approved by voters in 1994 and again three years later, Oregon’s Death With Dignity Act took effect in 1997. It allows physicians to prescribe lethal doses of drugs to patients of sound mind, who are thought to have less than six months to live. Under the law, doctors do not administer the lethal doses.

In 2001, Mr. Ashcroft ruled that the Death With Dignity Act violated federal drug laws, and he authorized criminal prosecutions of doctors who prescribe medications that can kill people seeking to commit suicide.

Mr. Ashcroft’s ruling became known as the “Ashcroft Directive.” It said that physician-assisted suicide serves “no legitimate medical purpose” and that doctors who prescribe controlled narcotics to kill people under Oregon’s assisted-suicide law could face criminal penalties and license suspension or revocation.

A doctor, a pharmacist, several terminally ill patients, the state of Oregon and a group called Compassion in Dying of Oregon filed suit to block the Ashcroft Directive in federal court soon after it was imposed.

A federal judge issued an injunction to halt enforcement of the order in 2002, and the Bush administration appealed that ruling to the 9th U.S. Circuit Court of Appeals.

In oral arguments last year, Justice Department lawyers held that Mr. Ashcroft had the right to bar Oregon doctors from prescribing controlled narcotics for the purpose of killing patients. They said Oregon’s assisted-suicide law violates the federal Controlled Substances Act of 1970, which limits the use of the drugs to medical purposes.

In its decision yesterday, the 9th Circuit found that the Ashcroft Directive is unlawful and unenforceable.

The panel said that the attorney general cannot exercise control over an area of law traditionally reserved for state authority and that there is no evidence Congress wanted the attorney general to regulate the practice of assisted suicide.

The judges said Mr. Ashcroft’s order went beyond the purpose of the Controlled Substances Act.

“The Ashcroft Directive purports to regulate medical practices outside the field of drug abuse and prevention,” said a summary that accompanied the court’s ruling.

The summary said “to the limited extent that the Controlled Substances Act authorizes the federal government to make decisions regarding the practice of medicine, Congress empowered the Secretary of Health and Human Services, not the Attorney General, to make those decisions.”

The 9th Circuit panel ordered the injunction blocking the Ashcroft Directive “to be continued in full force and effect.”

Dr. Hamilton, a past president of Physicians for Compassionate Care, a group that opposes assisted-suicide said, “It’s amazing that a federal court would let a single state nullify a federal law … but then again, the 9th Circuit has a reputation for making controversial decisions.”

Dr. Hamilton questioned the logic of the court’s claim.

“It’s been a prerogative of the federal government to control substances for any nonmedical purposes for more than 30 years,” he said.

Assisted-suicide advocates applauded the 9th Circuit ruling.

“This is a clear defense, not just of the Death With Dignity Act, but a clear defense of a state’s authority to regulate its own medical practices,” Kevin Neely, spokesman for Oregon Attorney General Hardy Rivers, told the Associated Press.

George Eighmey, executive director of Compassion in Dying of Oregon, a plaintiff in the case, said, “The message this decision sends to John Ashcroft is this: Keep your hands off of Oregon and all Oregonians.”

Since the law took effect, Mr. Eighmey said, 171 persons have elected to die by physician-assisted suicide — “one-tenth of 1 percent of all deaths that have occurred in our state” during that period, he said.

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