By Willima McCall, The Associated Press, 11/20/01 6:51 PM
PORTLAND, Ore. (AP) — A move by the Bush administration to dismantle Oregon’s physician-assisted suicide law was dealt a setback Tuesday when a federal judge extended a temporary restraining order for up to five months.
U.S. District Judge Robert E. Jones emphasized that Oregon’s law — the only one of its kind in the nation — remains in effect until he issues a final ruling on Oregon’s legal challenge to a directive by U.S. Attorney General John Ashcroft.
Jones said his order “nullifies giving any legal effect to the directive issued by John Ashcroft” — in other words, doctors should not fear any legal repercussions if they help hasten a terminally ill patient’s death under Oregon’s Death with Dignity Law.
On Nov. 6, Ashcroft issued a directive that prohibited doctors from prescribing lethal doses of federally controlled drugs to terminally ill patients — a move aimed directly at the Oregon law.
The state of Oregon then sued the Justice Department, accusing Ashcroft of stripping away Oregon’s right to govern the practice of medicine as it sees fit.
Jones granted the state’s request for a temporary restraining order on Nov. 8, and on Tuesday extended that order for up to five months — while both sides prepare their cases.
Jones voiced displeasure with the way Ashcroft had issued the order, which the judge again referred to as an “edict” — the same word he used in an earlier hearing when Jones questioned why Ashcroft delayed issuing it.
Two staff attorneys recommended the directive on June 29, but Ashcroft waited nearly five months before issuing it.
“Now he comes out with an edict that says this is how it will be,” Jones said.
During a four-hour court hearing, the Justice Department repeated its arguments that Oregon does not have the right to be an exception to federal drug laws.
“The principal question before the court is whether the attorney general can determine that assisted suicide is not a legitimate medical practice,” said Gregory Katsis, an attorney for the Justice Department.
The Bush administration claims the attorney general does have that power, reversing a directive by former Attorney General Janet Reno, who ruled on the same issue during the Clinton administration in 1998 and declared it was up to the state.
Katsis said it was true that the federal government has traditionally deferred to the states to regulate doctors, but he said a law passed by Congress in 1914, the predecessor to the Controlled Substances Act, began a long tradition of the federal government assuming regulatory authority over drugs.
Steve Bushong, an Oregon assistant attorney general, countered that Ashcroft’s order exceeds powers given to him by Congress.
In his Nov. 6 directive, Ashcroft said “prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA,” the Controlled Substances Act, passed by Congress in 1970 as part of the nation’s war on drugs.
Bushong argued that by applying the CSA to physicians who help terminally ill patients hasten their deaths, Ashcroft was interpreting the CSA in a way that was not intended by Congress.
“The congressional will expressed in the Controlled Substances Act has been violated by the action taken by the agency here,” said Bushong, referring to the U.S. Justice Department.
Advocates of Oregon’s physician-assisted suicide law contend that Ashcroft’s order, if allowed to stand, will prompt doctors nationwide to cut back on the amount of federally controlled pain medication they provide terminally ill patients out of fear their licenses to issue those drugs could be revoked.
William Howard, another Justice Department attorney, said Ashcroft had stated specifically that “implementation of this directive in Oregon should not change the DEA’s current practices with regard to enforcing the CSA.”
Jones, however, questioned whether the Ashcroft order could avoid having a chilling effect on doctors in other states worried about overprescribing pain medication. He posed a hypothetical situation requiring a doctor to prescribe so much medicine to a patient suffering great pain it renders him or her unconscious, and then hastens death.
Such situations are common, the judge suggested. “Doctors are then subjected to scrutiny,” Jones said.
Supporters of Oregon’s law say they will take their case all the way to the U.S. Supreme Court.
At least 70 people have used the law since it took effect, according to the state’s Health Services office. All have done so with a federally controlled drug.
Included in the documents filed in federal court are statements by four terminally ill patients who are pleading that people like themselves be permitted to end their suffering on their own terms. The four have joined the state of Oregon in the lawsuit against Ashcroft.
One of them, 68-year-old Karl Stansell, has terminal throat cancer. He’s received chemotherapy and radiation therapy, and is being fed through a feeding tube. His doctors have told him he has less than six months to live as the cancer spreads through his body.
“Eventually I will be unable to swallow anything and will die in agony,” unless the Oregon law is upheld, Sansell said.
Under Oregon’s Death with Dignity Law, doctors may provide — but not administer — a lethal prescription to terminally ill adult state residents. It requires that two doctors agree the patient has less than six months to live, has voluntarily chosen to die and is capable of making health care decisions.
The measure was approved by voters in 1994, survived legal challenges, and was re-approved in a 1997 referendum by a wide margin.