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Ruling Upholds Oregon Law Authorizing Assisted Suicide
By Adam Liptak, The New York Times
May 27, 2004
The federal appeals court yesterday upheld the only law in the nation authorizing doctors to help their terminally ill patients commit suicide. The decision, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said the Justice Department did not have the power to punish the doctors involved.
The majority used unusually pointed language to rebuke Attorney General John Ashcroft, saying he had overstepped his authority in trying to block enforcement of the state law, Oregon's Death With Dignity Act.
"The attorney general's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers," Judge Richard C. Tallman wrote for the majority, "interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law."
Charles Miller, a Justice Department spokesman, said lawyers there were reviewing the decision and had not decided on their next move. The government could ask an 11-member panel of the Ninth Circuit to rehear the case or try to appeal to the United States Supreme Court.
The assisted-suicide law in Oregon, the product of a 1994 voter initiative, allows adults with incurable diseases who are likely to die in six months to obtain lethal drugs from their doctors. The doctors may prescribe but not administer the drugs, and they are granted immunity from liability.
The majority in yesterday's decision emphasized that the court was not deciding the morality or appropriateness of assisted suicide.
"We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care," Judge Tallman wrote. "This case is simply about who gets to decide."
The states do, the court ruled.
"The principle that state governments bear the primary responsibility for evaluating physician-assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct," Judge Tallman wrote.
About 30 people a year have used the law to end their lives since it became effective in 1997, according to state health records. That represents about one in every thousand deaths in Oregon.
"The main thing is that the people of Oregon made a decision through the democratic process," said Don James, 78, a Portland man who is dying of cancer. "I don't know yet if I will personally take advantage of it," Mr. James said of the law, noting that his prostate cancer has spread to his bones and causes him considerable pain. "But I want the option."
In 1997, Mr. Ashcroft, then a United States senator from Missouri, asked Attorney General Janet Reno to declare that physician-assisted suicide involving doctors violated federal law. She declined, saying that individual states should be allowed to regulate their own doctors. When Mr. Ashcroft became attorney general in 2001, he reversed Ms. Reno's position and issued a directive saying that doctors who prescribe lethal drugs to patients under the Oregon law could face federal sanctions and prosecution under the Controlled Substances Act.
Some scholars have criticized Mr. Ashcroft for what they say is only fitful fidelity to his political philosophy of respect for decentralized government and local decision-making.
Yesterday's decision considered a challenge to Mr. Ashcroft's directive brought in 2001 by a doctor, a pharmacist, several terminally ill patients and the State of Oregon. Judge Robert E. Jones, of the Federal District Court in Oregon, sided with the plaintiffs in 2002, ordering the Justice Department not to enforce Mr. Ashcroft's directive..
In its ruling yesterday, the appeals court panel said that upholding Mr. Ashcroft's directive would have a high human toll.
"Doctors will be afraid to write prescriptions sufficient to painlessly hasten death," Judge Tallman wrote. "Pharmacists will fear filling their prescriptions. Patients will be consigned to continued suffering and, according to the declarations of record, may die slow and agonizing deaths."
Kevin Neely, a spokesman for Oregon's attorney general, Hardy Myers, said the ruling was "a slam-dunk victory for the State of Oregon."
"Decisions regarding medical practice are decisions for the state and the state alone to make," Mr. Neely said. "Attorney General Ashcroft simply abused his authority in this matter."
Vikram Amar, a professor at Hastings College of the Law in San Francisco, said it was sometimes hard to divine the Justice Department's guiding philosophy in deciding which state laws to challenge. The department has tried to override state medical marijuana laws, and it has vetoed the decisions of local federal prosecutors who declined to seek the death penalty.
"They haven't explained very well the distinctions they make," Mr. Amar said, "and that leaves them open to the charge of hypocrisy."
The majority appeared to acknowledge that Congress is free to override the Oregon law, but it held that federal lawmakers have so far not done so.
Mr. Ashcroft relied on the Controlled Substances Act, which allows the federal government to sanction doctors if they prescribe drugs for anything but legitimate medical purposes.
But the majority ruled that the text, purpose and history of that law did not authorize the Justice Department to use it to override the Oregon law. Congress meant to fight drug abuse, the majority said, not to regulate what is and is not medicine.
Judge J. Clifford Wallace, in a dissenting opinion, said the attorney general had the authority to issue his directive.
"There is simply no textual support for the majority's conclusion that `the field of drug abuse,' as discussed in the Controlled Substances Act, does not encompass drug-induced, physician-assisted suicide," Judge Wallace wrote.
Judge Tallman, who wrote the majority decision, was appointed by President Bill Clinton but is not a member of the court's liberal wing. "He is one of the most conservative judges on the Ninth Circuit," said Professor Erwin Chemerinsky, a law professor at the University of Southern California.
Judge Tallman was joined by Judge Donald P. Lay, a visiting judge from the Federal Appeals Court in St. Louis. He was appointed by President Lyndon Johnson. Judge Wallace, who dissented, was appointed by President Richard Nixon.
Eli D. Stutsman, a Portland lawyer who represented the doctor and pharmacist in the case, said his clients are relieved.
"They're free from fear of prosecution under the Ashcroft directive," Mr. Stutsman said, "and they can focus on their practices and their ability to care for their patients."
Dr. Greg Hamilton, a spokesman for Physicians for Compassionate Care, which opposes the assisted-suicide law, said yesterday's decision was misguided.
"It's amazing when a federal court allows any state to nullify federal laws," Dr. Hamilton said. "Vulnerable people in the state of Oregon are deprived of the protections available to people in 49 other states."
Barbara Coombs Lee, president of Compassion in Dying Federation, a Portland, Ore., advocacy group that supports assisted suicide, said she was gratified by the ruling but wary of future challenges.
"This law has been under constant assault for 10 years and this is the latest victory," Ms. Coombs Lee said, adding that Mr. Ashcroft "could take his loss and ask his friends in Congress to try again to amend the Controlled Substances Act."
"The opponents who remain at this point after six years of success in Oregon are really moral opponents," she said. "But they have lost in the court of opinion and they have lost in our nation's courts, so the next choice they have is to try and exert their political power where they have it."
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