Court Hears Case on Ashcroft's Assisted Suicide Ruling

May 8, 2003—Portland, OR: A panel of judges on Wednesday grilled federal attorneys on the merit of the U.S. government's case defending a decision by Attorney General John Ashcroft prohibiting the use of federally-controlled drugs in assisted suicides in Oregon.

Although the three federal judges from the Ninth District Court of Appeals said they would hand down a 'decision as soon as we can', attorneys from both sides said they do not expect a decision for months and that any ruling will likely be appealed to the Supreme Court.

Previously, the Drug Enforcement Administration concluded Oregon's assisted suicide law violated the Controlled Substances Act, which regulates the use of many drugs, but was overruled by former Attorney General Janet Reno.

Following President Bush's election, Ashcroft sided with the DEA and made such drugs off limits for use in assisted suicides. Thus far, all of the assisted suicides in Oregon have involved federally regulated drugs.

"Federal law has long authorized physicians to prescribe controlled substances only for legitimate medical purposes. Assisting suicide is not such a purpose," Gregory Katsas, deputy assistant attorney general for the Department of Justice said.

Attorneys for the state of Oregon and supporters counter that the Controlled Substances Act was intended to fight drug dealing and has nothing to do with legitimate medical practices. Medical practices have traditionally been regulated by the states, they argued.

Pro-life advocates disagree.

"This is an issue of whether the federal government has the right to regulate federal law, even if the state disagrees," said Wesley J. Smith, an attorney for Physicians for Compassionate Care, a group that opposes assisted suicide. "This is not an issue of states rights in my view."

Kathryn Tucker, an attorney for Compassion in Dying, a group that backs euthanasia, was encouraged after the hearing. "The judges' questions to the Department of Justice were very difficult questions," she said.

The judges could decide on the merits of the case or even decide they do not have jurisdiction to decide the case. Until the judges decide, Oregonians can continue to use the law, which was first passed by voters in 1994 and reaffirmed in 1997.

The panel includes Clifford J. Wallace, a San Diego-based senior judge appointed by President Nixon in 1972; Donald P. Lay, a St. Paul, Minn.-based senior judge from the 8th U.S. Circuit Court of Appeals appointed by President Johnson in 1966; and Richard Tallman, a Seattle-based judge appointed by President Clinton in 2000.

Since it took effect in 1998, 129 Oregonians have died. In order to get a prescription, two doctors must certify that the patient has less than six months to live. The patient must ask for the drugs several times, once in writing, and the patient must be able to swallow the bitter drugs without help.