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Justices to Hear Challenge to Oregon Assisted-Suicide Law

By Charles Lane
Washington Post Staff Writer
Wednesday, February 23, 2005; Page A06

Granting a request by the Bush administration, the Supreme Court said yesterday that it will decide whether the Justice Department may bar Oregon doctors from prescribing lethal doses of drugs to terminally ill patients who have chosen to die under that state's 11-year-old Death With Dignity Act.

In a brief order, the court said it will review a lower court's decision preventing enforcement of a November 2001 statement of Justice Department policy by then-Attorney General John D. Ashcroft. The directive said that assisting suicide is not a "legitimate medical purpose" under federal drug-control law and that the Drug Enforcement Administration could strip the prescribing rights of any physician who authorized drugs to help someone die.

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Ashcroft's directive overturned a 1998 decision by President Bill Clinton's attorney general, Janet Reno, to permit Oregon doctors to assist in suicides.

The court's decision sets the stage for a battle next fall over an issue that for years has bitterly divided Americans between those who say physician-assisted suicide is often the only option terminally ill patients have to end their suffering, and those who say it amounts to homicide.

The latest flashpoint was the Oscar-nominated movie "Million Dollar Baby," directed by Clint Eastwood, which sympathetically portrays a friend's decision to help a paralyzed boxer end her own life. Religious conservatives and some disability-rights groups have denounced the film.

Strictly speaking, the case Gonzales v. Oregon, No. 04-623, does not involve any assertion of a constitutionally protected "right to die." The court refused to recognize such a right in 1997, ruling that it should be left up to the states to determine whether legalized assisted suicide is wise policy.

Rather, the case presents a clash between the federal government's power to regulate prescription drugs and the states' traditional power to regulate the practice of medicine within their own borders.

In 2001, Ashcroft -- in a legal interpretation that his successor, Alberto R. Gonzales, will now defend -- declared that the federal Controlled Substances Act, first adopted in 1970, bars the use of federally controlled substances for assisted suicide. Ashcroft had first taken up the cause as a senator, when he opposed Reno's ruling that the DEA had no power over Oregon doctors' involvement in assisted suicide.

"There are important medical, ethical and legal distinctions between intentionally causing a patient's death and providing sufficient dosages of pain medication necessary to eliminate or alleviate pain," Ashcroft wrote.

But Oregon and its allies in the case argue that the Controlled Substances Act required Ashcroft to defer to state policy on the practice of medicine.

"We're dealing with a federal statute that empowers the Drug Enforcement Administration to prohibit illicit drug use, trafficking and diversion -- but that is not what the Death With Dignity Act is about," said Eli D. Stutsman, board president of the Death With Dignity National Center and an attorney who represents an Oregon doctor and pharmacist who would face punishment under Ashcroft's directive.

Last year, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled 2 to 1 in Oregon's favor, upholding a ruling in the state's favor by an Oregon federal district court.

The Ashcroft directive is "unlawful and unenforceable," the 9th Circuit majority ruled, "because it violates the plain language of the CSA [Controlled Substances Act], contravenes Congress' express legislative intent and oversteps the bounds of the Attorney General's statutory authority."

The Oregon Death With Dignity Act, adopted by referendum in 1994, makes adult Oregon residents suffering from incurable illness likely to result in death within six months eligible for a lethal prescription.

Two independent physicians must confirm the diagnosis, and the patient must be mentally competent and request the lethal dose in writing.

Oral arguments in the case will take place next fall, and a decision is expected by July 2006.

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