 By DAVID WHITNEY McClatchy Newspapers
January 19, 2006
Oregon is the only state that has such a law. But other states are considering the legalization of doctor-assisted suicide for terminal patients, and Tuesday's 6-3 ruling was seen as an encouragement of that movement. "More and more Americans are demanding a greater say in how they live and how they die," said Peg Sandeen, executive director of the Death with Dignity National Center in Portland, Ore. She called the court's ruling "a historic milestone that will protect the people's rights as patients."
The court's majority decision by Justice Anthony Kennedy did not uphold the Oregon law so much as it repudiated the Justice Department's basis for going after physicians who prescribe life-ending drugs. That rule, advanced in 2001 by former Attorney General John Ashcroft, authorized the prosecution of doctors under the federal Controlled Substances Act on the basis that assisted suicide is not a "legitimate medical purpose" for drugs controlled under that law. Kennedy said the federal drug law did not give the Justice Department the authority to regulate the practice of medicine. To conclude otherwise, Kennedy wrote, would put the attorney general in the business of regulating doctors using controversial medical treatments over which the attorney general has no legal authority or expertise. The decision drew a strong dissent by Justice Antonin Scalia, who was joined by the high court's newest member, Chief Justice John Roberts. "If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death," Scalia wrote. Justice Clarence Thomas, in a separate dissent, said the majority opinion "beats a hasty retreat" from the court's ruling last year that doctors can be prosecuted under the federal drug law for prescribing marijuana to ease chronic pain. Since the voter-approved Oregon law took effect in November 1997, 208 terminally ill people have swallowed sufficient quantities of prescribed pills to die, according to a 2005 report by the Oregon Department of Human Services. Figures from 2005 are due in March. The Clinton administration declined to step into the assisted suicide legal debate after the 1997 Oregon vote, the second time the measure had pass, the other being in 1994. Then-Attorney General Janet Reno concluded, as Kennedy noted in his opinion, that federal drug agents were not authorized by the Controlled Substances Act to "override a state's determination as to what constitutes a legitimate medical practice." Ashcroft issued the Justice Department ruling at issue Tuesday in November 2001 just before leaving office, effectively blocking Oregon's law by authorizing Drug Enforcement Agency agents to snoop out and punish doctors who prescribe life-ending drug overdoses. Kennedy noted in his opinion that Ashcroft's ruling was issued "without consulting Oregon or apparently anyone outside the (justice) department." The rule was challenged by Oregon in federal court. The Justice Department was enjoined from enforcing the rule by a federal court in Portland that regarded assisted suicide as a matter that states should be free to decide for themselves. The 9th U.S. Circuit Court of Appeals in San Francisco upheld that ruling, adding to its reasoning the fact that the Controlled Substances Act gives the attorney general no role in deciding medical policy. The majority opinion embraced that argument, saying the drug law gives the attorney general authority to control diversions of drugs to illicit use, but does not "give him the authority to define diversions based on his view of legitimate medical practice." Critics seized on the fact that Tuesday's ruling was not on the Oregon law itself. "Today's Supreme Court decision is not an endorsement of assisted suicide," said Tony Perkins of the Family Research Council. "All it means is that under this particular statute the attorney general may not prohibit a state from permitting federally-regulated drugs to be use in assisted suicide."
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