- The Washington Times - Wednesday, October 5, 2005


New Chief Justice John G. Roberts Jr. yesterday sharply questioned a lawyer arguing for preservation of Oregon’s physician-assisted suicide law, noting the federal government’s tough regulation of addictive drugs.

At the outset, Chief Justice Roberts directed a barrage of questions at Oregon Senior Assistant Attorney General Robert Atkinson before the state official could finish his first sentence.

“Doesn’t that undermine and make enforcement impossible?” he asked Mr. Atkinson.

At one point, a flustered Mr. Atkinson said: “I’m starting to be backed into a corner.”

The justices will decide if the federal government, not states, has the final say on the life-or-death issue.

It was a wrenching debate for a court touched personally by illness. Chief Justice Roberts replaced William H. Rehnquist, who died a month ago after battling cancer for nearly a year. Three others — Justices Ruth Bader Ginsburg, Sandra Day O’Connor and John Paul Stevens — have had cancer, and Justice Stephen G. Breyer’s wife counsels young cancer patients.

The outcome is difficult to predict, in part because of the uncertain status of retiring Justice O’Connor, who seemed ready to support Oregon’s law. Her replacement may be confirmed before the ruling is handed down, possibly months from now.

Chief Justice Roberts repeatedly raised concerns that a single exception for Oregon would allow other states to create a patchwork of rules for steroids, painkillers and other drugs.

The Supreme Court eight years ago found that the dying have no constitutional right to doctor-assisted suicide. Justice O’Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

The new case is a turf battle of sorts, started by former Attorney General John Ashcroft, a favorite among the president’s conservative religious supporters. Hastening someone’s death is an improper use of medication and violates federal drug laws, Mr. Ashcroft reasoned in 2001, an opposite conclusion from the one reached by Attorney General Janet Reno in the Clinton administration.

Oregon won a lawsuit in a lower court over its voter-approved law, which took effect in 1997 and has been used by 208 persons.

The Supreme Court appeared sharply divided in hearing the Bush administration’s appeal.

Justice Ginsburg talked about medicines that make a sick person’s final moments more comfortable. Justice David H. Souter said that it’s one thing for the government to ban date-rape drugs and harmful products, but “that seems to me worlds away from what we’re talking about here.”

On the other side, Chief Justice Roberts and Justice Antonin Scalia appeared skeptical of Oregon’s claims that states have the sole authority to regulate the practice of medicine.

“I was wondering if the new chief would hold back and wouldn’t ruffle other people’s feathers. It appears clear he’s not waiting for anything or anyone,” said Neil Siegel, a law professor at Duke University and a former Supreme Court clerk.

If Justice O’Connor ends up being the deciding vote in the case, the court probably would delay the decision and schedule a new argument session after the arrival of the new justice.

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