On November ninth, as one of his final acts as U.S. Attorney General, John Ashcroft appealed a case to the U-S Supreme Court on the issue of assisted suicide. He asked the justices to decide whether the U.S. Department of Justice has the authority to overturn a state law in Oregon that permits doctors to help terminally ill patients die. Oregon is the only state in the nation to allow terminally ill, mentally competent adults to end their lives with a doctor's prescription.
Attorney Eli Stutsman helped write the Oregon law in 1994. He says the appeal by Mr. Ashcroft is just the latest skirmish in a long battle. "The way I make sense out of it is simply acknowledging it's a political fight," he says. "If it were a legal fight, it would have been resolved long ago and we'd be done. But because it's a political fight, it just keeps re-emerging."
The Oregon Death with Dignity Act allows patients diagnosed with fewer than six months to live to ask a doctor for help in dying. In the six years since the law took effect, at least 171 patients have taken an overdose of powerful barbiturates prescribed by a physician. But three years ago Attorney General Ashcroft issued a policy directive stating that such federally regulated drugs can be used only for a "legitimate medical purpose." Helping a patient die is not an accepted part of medicine, according to Greg Hamilton, a spokesman for Physicians for Compassionate Care, a group that opposes the assisted suicide law. "In fact, it is antithetical to the practice of medicine and it's dangerous," says Dr. Hamilton. "We're confident that the Supreme Court will uphold in this case that no state can exempt itself from federal law."
But Kevin Neely of the Oregon Department of Justice says the regulation of medical practices is a responsibility of the states, not the federal government. "Medical practice has never been set in Washington, D.C.," he says. "Why should it be set now simply because they don't like the policy that Oregon voters have chosen to adopt? Obviously, we believe that that's an inappropriate use of the federal government's powers."
Prior to this latest appeal by the U.S. Justice Department, the state of Oregon sued the agency and won in two lower courts. In 2002, a federal judge ruled that Attorney General Ashcroft overstepped his authority. In May of this year, a federal appeals court issued a strongly worded opinion saying that federal law simply does not give the Attorney General the power to go after Oregon doctors. Kathryn Tucker, with the right-to-die group Compassion in Dying, sees no reason for the issue to be reviewed by the nation’s highest court. "The lower courts interpreted a federal statute and did it in a way that was very straightforward and well grounded, that didn't venture into constitutional issues," she says. "For all of those reasons it's a case not likely to capture the interest of the United States Supreme Court."
If the Supreme Court declines to hear the case, the issue will likely come back to the U.S. Congress. Six years ago, Senator Ron Wyden of Oregon led a fight to defeat an effort on Capitol Hill to block the Oregon law. Now he recognizes that the issue is back in the news just as Republicans have increased their power with a new 55-to-45 majority in the Senate. "My sense is that the Oregon position has lost a few votes," says Senator Wyden. "But people said it was impossible to preserve the law the last time. And I intend to fight with all my strength and do my best to make sure that when the people of Oregon cast a ballot, they know it will count."
So far, opponents of physician-assisted suicide have contained the policy to Oregon. Voters in several states, including Michigan and Maine, have rejected similar laws. Assisted suicide opponent Greg Hamilton is confident that this track record will continue. "In 1994, when this law was passed, the proponents of assisted suicide were saying that it was going to sweep the country," he says. "It’s been rejected in the entire country. We've opposed this in all of the states, all of the legislatures and all of the courts. And we will continue to do that."
Mr. Hamilton's next fight may be in California, where state lawmakers are gearing up to consider a bill similar to the one in Oregon.