By William Branigin
Tuesday, January 17, 2006; 2:57 PM

The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law.

In a 6-3 vote, the court ruled that then-U.S. attorney general John D. Ashcroft overstepped his authority in 2001 by trying to use a federal drug law to prosecute doctors who prescribed lethal overdoses under the Oregon Death With Dignity Act, the only law in the nation that allows physician-assisted suicide. The measure has been approved twice by Oregon voters and upheld by lower court rulings.

Faced with lower court rulings against his position, Ashcroft brought the case to the Supreme Court on the day he announced his resignation in November 2004. The case was continued by his successor as attorney general, Alberto R. Gonzales.
Chief Justice John G. Roberts Jr., dissenting for the first time since he joined the court in September, sided with the two most conservative justices -- Antonin Scalia and Clarence Thomas -- in voting for the minority view.

At issue was whether the federal Controlled Substances Act (CSA), enacted in 1970 to combat drug abuse and trafficking, allowed the attorney general unilaterally to prohibit doctors in Oregon from prescribing regulated drugs for use in physician-assisted suicide, despite state law permitting them to do so.

Writing the opinion of the court, Justice Anthony M. Kennedy said the federal law bars doctors from using prescriptions to engage in illicit drug dealing but that "the statute manifests no intent to regulate the practice of medicine generally." Moreover, CSA relies on "a functioning medical profession regulated under the states' police powers," he wrote.

"In the face of the CSA's silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it is difficult to defend the Attorney General's declaration that the statute impliedly criminalizes physician-assisted suicide," Kennedy wrote.

Writing in dissent, Scalia attacked the finding that the attorney general "lacked authority to declare assisted suicide illicit" under the federal law. "This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence," he wrote.

Scalia backed the government's position that assisting in suicide was not a "legitimate medical purpose." Saying that the court's decision "is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business," Scalia wrote that "it is easy to sympathize with that position." However, the government has long been able to use its powers "for the purpose of protecting public morality," he said.

"Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible," Scalia said. "If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death."

Siding with Kennedy were Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Oregon's physician-assisted suicide law has been used by more than 200 people to end their lives since 1997, when the law took effect. In 2004, 37 patients committed suicide by taking a lethal dose of medication prescribed under the law.

Oregon became the first state to legalize assisted suicide when voters approved a 1994 ballot measure to enact the Oregon Death With Dignity Act. Three years later, voters rejected a ballot measure to repeal the act.

The law exempts from civil or criminal liability state-licensed doctors who dispense or prescribe a lethal dose of drugs at the request of a terminally ill patient. The patient must receive a diagnosis from an attending physician that an incurable and irreversible disease will cause death within six months. The doctor must determine whether the patient's request is voluntary and informed and must make a referral for counseling if there are any indications of a psychological disorder or depression.

A second, consulting doctor must examine the patient and the medical record and confirm the attending physician's conclusion. Doctors may dispense or issue a prescription for the lethal drug dose under the Oregon law but may not administer it.

In 1997, some members of Congress -- notably Sen. Orrin G. Hatch (R-Utah) and Rep. Henry Hyde (R-Ill.) -- tried to thwart the Oregon law, urging the Drug Enforcement Administration to go after doctors who assisted suicide by prescribing lethal drugs. But then-attorney general Janet Reno rejected the approach on grounds that the Controlled Substances Act did not authorize such federal intervention in state matters. Republican lawmakers introduced legislation in 1998 and 1999 to deal with the issue, but it failed to pass.

In November 2001, Ashcroft issued an "interpretive rule" for the CSA that barred using controlled substances to assist suicide. He declared that "assisting suicide is not a 'legitimate medical purpose' within the meaning" of the law.

The state of Oregon, a doctor, a pharmacist and some terminally ill patients filed suit in U.S. District Court and won an injunction against the interpretive rule. The Court of Appeals for the 9th Circuit subsequently declared the interpretive rule invalid, saying that the attorney general did not have the power to turn a medical procedure allowed by Oregon law into a federal offense without clear authorization in federal law. The ruling also said the rule could not be reconciled with the CSA's plain language. That language targets only conventional drug abuse and excludes the attorney general from medical policy decisions, the appeals court said.

It was this 2004 ruling that Ashcroft appealed to the Supreme Court.
Today's decision in Gonzales v. Oregon was hailed by advocates of a right to die.
One group, the Washington-based American Humanist Association, issued a statement calling the decision "a victory for religious and individual freedoms." The association had supported a friend-of-the-court brief in the case.

"The Bush administration's directive to block the Oregon law disregarded Americans who support ethical end-of-life decisions," said Mel Lipman, the association's president. Roy Speckhardt, the group's executive director, called Ashcroft's effort "a thinly veiled attempt to enforce a sectarian point of view -- tantamount to creating national policy based on one religious perspective."
Washington Post

ABOUT THE AUTHOR

Russell Wilcox is a retired college professor who spends several months in Florida and several months in Rhode Island each year, and whose interests include boating and sailing, political activism, ballroom dancing and bridge. He has an MBA from Harvard, a Computer Systems CAGS from Bryant and a BS from Northeastern. He has worked in industry for EG&G and Texas Instruments, operated his own business with more than 200 employees, and served as Director of the Computer Information Systems Program for Stonehill College. He is a published author of two technical studies, and is the proud father of four children and the proud grandfather of six grandchildren. A holder of two patents in microchip connections and a true product of the melting pot, his father is the son of a Yankee farmer, and his mother the second generation daughter of Italian immigrants who retained their culture, but strove mightily to become Americans, sending four sons to fight against Hitler and Mussolini.