Source: Los Angeles Times (CA)
Author: David G. Savage, Times Staff Writer
Published: November 10, 2004
Copyright: 2004 Los Angeles Times
Contact: [email protected]
The attorney general urges the Supreme Court to let federal agents go after doctors in the state who help patients end their lives.
Washington -- Seeking to void the nation's only "right to die" law, outgoing Atty. Gen. John Ashcroft asked the Supreme Court on Tuesday to give federal agents the authority to punish Oregon doctors who help dying patients end their lives.
The Bush administration's top legal officer said that federal drug laws trumped the state's traditional control over the practice of medicine. Ashcroft is appealing the rulings of two lower courts, which held that Oregon has a right to regulate its doctors.
The case is the second before the high court this year in which the administration is challenging West Coast voters on matters of individual liberty and personal privacy.
The court on Nov. 29 will hear the case of Ashcroft vs. Raich, in which the Justice Department is seeking legal authority to raid the residences of those who use home-grown marijuana to relieve their pain. It is a challenge to California's pioneering 1996 law that allows the use of marijuana for medical purposes.
Two years before the California law won approval, Oregon's voters passed the nation's first and only "right to die" measure. Known as the Death with Dignity Act, it allows doctors to prescribe lethal medications to terminally ill patients who wish to hasten their deaths.
The law is popular in Oregon, but rarely used. Since 1997, 171 people have used medication to end their lives, the state has reported. Most of them had cancer.
Social conservatives opposed to the law sought federal intervention. They argued that the use of medication to bring about death, rather than to save lives, violated the federal Controlled Substances Act. Doctors who prescribe drugs for such a purpose should lose their licenses to write prescriptions, they said.
In 1998, then-Atty. Gen. Janet Reno and the Clinton administration rebuffed a move by Rep. Henry J. Hyde (R-Ill.) and Ashcroft — at the time a Republican senator from Missouri — to take action against Oregon's doctors.
After Ashcroft became attorney general in 2001, his office declared that "assisting suicide is not a legitimate medical purpose" for dispensing drugs. Based on this opinion, Ashcroft said federal authorities would seek to revoke the licenses to prescribe drugs for any Oregon doctor who aided a suicide.
The state of Oregon went to court to challenge Ashcroft's move. A federal judge in Portland blocked his policy from taking effect, and the U.S. 9th Circuit Court of Appeals ruled Ashcroft had exceeded his authority.
Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide" and is "unlawful and unenforceable," Judge Richard A. Tallman said in a 2-1 ruling last May.
Tallman relied on a states' rights opinion from the Supreme Court in the case of Gregory vs. Ashcroft. In that case, then-Missouri Gov. Ashcroft won the right to force state judges to retire at age 70, despite a federal law that frowns upon mandatory retirement polices. The high court, agreeing with Ashcroft, said such matters were entrusted to the states.
Citing that ruling in the assisted suicide case, Tallman said the regulation of doctors and medicine was entrusted to the states.
On Tuesday, Ashcroft asked the Supreme Court to reverse Tallman's opinion, which he faulted for "misconstruing and dramatically expanding the scope of this court's decision in Gregory vs. Ashcroft."
Federal authorities have the exclusive power "to control dangerous substances" such as narcotics. Any other rule would "upset the usual balance between the state and federal governments," the government said in Ashcroft vs. Oregon.
The full 9th Circuit refused to reconsider Tallman's ruling in August, and Ashcroft's office waited until the 90-day deadline Tuesday to file its petition in the high court.
The leaders of Oregon's right-to-die movement predicted the Supreme Court would turn down the appeal.
"This is Ashcroft's parting shot from the far right at the people of Oregon," said Scott Swenson, executive director of the Death with Dignity National Center in Portland.
In the marijuana case, Ashcroft also cites federal drug laws. U.S. authorities have refused to accept the California law and insist that federal narcotics laws forbid the use of marijuana "in all instances." Ashcroft is challenging a lower court ruling that held federal authorities did not have the constitutional power to regulate people for using home-grown products at home.
California's medical marijuana law gives those who are seriously ill a right to "obtain and use marijuana for medical purposes where
it has been recommended by a physician."
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