PORTLAND - Attorney General John Ashcroft has based his legal challenge to
the only assisted suicide law in the nation on a Supreme Court ruling on a
seemingly unrelated issue - using marijuana for medical purposes.

Last week, Ashcroft said doctors in Oregon cannot legally prescribe
federally controlled drugs to hasten death.

The Oregon Death with Dignity Act has been twice approved by voters and
since 1998 has allowed at least 70 terminally ill patients to ask their
doctors for a lethal overdose of drugs to end their lives before their pain
and suffering become unbearable.

But Ashcroft said a unanimous Supreme Court ruling last May on medical
marijuana forced him to reconsider whether the Oregon law conflicts with
the federal Controlled Substances Act.

The Supreme Court said federal drug law must be enforced uniformly and
makes no exception for people to use marijuana for medical purposes,
despite laws in eight states - including Oregon - allowing it.

Ashcroft interpreted the ruling to apply to prescription drugs as well,
overturning an earlier interpretation by former Attorney General Janet Reno
during the Clinton administration.

In a directive dated Nov. 6 and published last Friday in the Federal
Register, Ashcroft said, "I hereby determine that assisting suicide is not
a 'legitimate medical purpose' ... and that prescribing, dispensing, or
administering federally controlled substances to assist suicide violates
the CSA."

The day before the directive was published, the state of Oregon sued
Ashcroft and succeeded in blocking his directive from taking effect until
Nov. 20, when there will be another hearing on the issue in federal court
in Portland.

Oregon Attorney General Hardy Myers argues that Ashcroft has exceeded the
authority granted him by Congress by extending a criminal law against
illegal drug sales - namely marijuana - to the medical use of carefully
controlled prescription drugs.

"There's a big difference - we're not talking about illegal drugs here,"
said James O'Fallon, a constitutional law professor at the University of
Oregon.

Even if the Ashcroft interpretation is allowed, Myers argues the federal
government has no business interfering in medical practice in Oregon
because the Constitution gives states the right to decide some laws by
themselves - especially medical laws.

Myers cites another recent unanimous U.S. Supreme Court decision, which
said there is no constitutional right to assisted suicide.

But he notes that same 1997 ruling also said it was up to the individual
states to decide for themselves whether to allow assisted suicide. That
same year, Oregon voters overwhelming reaffirmed their assisted suicide law
in a statewide ballot.

O'Fallon says courts and Congress also have historically given states the
responsibility for regulating doctors.

"The great irony of this is that we are dealing both with an administration
and ultimately a Supreme Court who purport to place great value on state
sovereignty and states exercising control over the everyday lives of their
people instead of having the federal government intrude," O'Fallon said.

Rebecca Dresser, a law professor and bioethics expert at Washington
University in St. Louis, said the Oregon law was an attempt to control what
has become an "underground" practice of overprescribing pain medication for
the terminally ill.

"We know it goes on," Dresser said. "Doctors give patients prescriptions
knowing it may end their lives, whether it's legal or not."

Barbara Coombs Lee, the nurse turned attorney who is one of the chief
authors of the Oregon law, defends it as a way to allow doctors and their
patients to decide when all hope is exhausted and pain is simply too much
to bear. But the law leaves the final decision to take the overdose up to
the patient, not the doctor.

Ashcroft, however, states in his directive to the DEA chief that 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."

No matter how important Ashcroft considers those distinctions, Oregon State
University political science professor Bill Lunch notes that his directive
was delayed by nearly five months after his staff recommended it in June.

Lunch says the delay may have been a deliberate political ploy to avoid
forcing U.S. Sen. Gordon Smith, R-Ore., to join the Bush administration
effort to undermine the Oregon law at a time when Smith may have faced a
tough re-election campaign against a popular Democratic challenger, Gov.
John Kitzhaber, who signed the assisted suicide bill into law in 1999.

Kitzhaber decided in September not to run for the Senate.

Smith is being challenged by Secretary of State Bill Bradbury, who is not
seen as potent a candidate in the race as Kitzhaber would have been.

U.S. District Judge Robert Jones last Thursday issued a 10-day temporary
injunction barring Ashcroft from putting his interpretation of federal drug
law into effect, noting the five-month delay before Ashcroft issued what
Jones termed an "edict for instant enforcement."

Jones warned, however, that neither side should take his language or his
sharp questions for attorneys as a signal to predict whether he will decide
Nov. 20 to let Ashcroft's directive stand or whether he will extend the
injunction barring it until the issue can be decided by a court.

Nelson Lund, a George Mason University law professor and expert in assisted
suicide legal issues, says the fate of the Oregon law ultimately may not
rest on the medical debate or the clash of moral and ethical principles,
but instead on a simple reading of the Controlled Substances Act.

"I really don't think it's so much a collision of principles as it is a
straightforward interpretation of what the statute means," Lund said.


Newshawk: Terry Liittschwager
Pubdate: Mon, 12 Nov 2001
Source: Register-Guard, The (OR)
Copyright: 2001 The Register-Guard
Contact: rgletters@guardnet.com
Website: http://www.registerguard.com/
Details: http://www.mapinc.org/media/362
Author: William McCall (AP)
Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft, John)
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)