Court hears physician-assisted suicide case

The Supreme Court is expected to rule in June 2006 on whether the U.S. attorney general can supersede Oregon's Death With Dignity Act.

By Kevin B. O’Reilly — Posted Oct. 24, 2005

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Earlier this month the U.S. Supreme Court heard oral arguments in a case that will determine whether Oregon physicians may prescribe federally controlled drugs to help end the lives of terminally ill patients under the state's Death With Dignity Act.

The question before the court is whether then U.S. Attorney General John Ashcroft exceeded his authority under the Controlled Substances Act when, in 2001, he issued a directive stating that physician-assisted suicide was not a "legitimate medical purpose" for which doctors could prescribe federally controlled drugs.

Ashcroft said physicians who prescribed drugs that assisted in suicides could have their federal drug licenses revoked and be prosecuted for violating federal criminal law.

In May 2004, the 9th Circuit Court of Appeals ruled 2-1 that Ashcroft, overlooking a long tradition of deferring to states in the regulation of medical practice, had overstepped his authority. The federal government appealed the case to the Supreme Court.

The justices quizzed lawyers for the federal government and Oregon on the limits of their positions, the implications for other cases and the consequences of a ruling.

Justice Sandra Day O'Connor focused on federalism, asking Solicitor General Paul Clement whether the Controlled Substances Act specifically gives the attorney general the power to regulate medicine. No, Clement said. But he added that the 1970 Congress that passed the law never dreamed that a state would make it legal for physicians to help patients kill themselves.

Chief Justice John Roberts asked Oregon Assistant Attorney General Robert Atkinson whether a state could pass a law allowing physicians to prescribe morphine for recreational use without running afoul of the CSA, thus undermining the federal government's ability to combat drug abuse. Atkinson said states had been responsible in regulating medical practice and wouldn't do such a thing.

Various medical societies filed friend-of-the-court briefs on both sides of the issue.

"We're cautiously optimistic that the court will uphold the 9th Circuit," said Geoffrey Michael, a lawyer who filed a brief on behalf of an ad hoc coalition of 30 state medical associations, specialty societies, hospice and palliative care groups, and pain physicians who feared a ruling against the Oregon law would federalize the regulation of medicine and impede effective end-of-life care.

"[The arguments] went well," said Michael, who is with the Washington, D.C., law firm of Arnold & Porter. "The court expressed that the Controlled Substances Act was made to go after drug addiction and drug trafficking and not meant to give the federal government wholesale authority to regulate the practice of medicine."

Meanwhile, Steven Aden, who filed a friend-of-the-court brief in support of the federal government, said that after the oral arguments, "I think it's fair to say [the case is] a close call."

Aden filed the brief on behalf of the Christian Medical Assn. and five other self-identified pro-life and religious groups."For the justices, it's right on the horns of a constitutional issue that has the court going in different ways in the last several years, and that's the issue of the discretion of a state versus the province of the federal government to regulate in appropriate areas."

The AMA did not file a friend-of-the-court brief in the case. The AMA has policy that asks physicians to respect a patient's end-of-life directive to withhold or withdraw treatment, though physicians also are duty-bound to ease suffering as much as possible even when those directives are in place. But AMA delegates have on multiple occasions passed policy stating physician-assisted suicide is "fundamentally inconsistent with the physician's role as healer."

The Oregon Medical Assn. also is not involved in the Supreme Court case. It has maintained a position of neutrality ever since the Death With Dignity Act was first proposed in the mid-1990s, lobbying only to ensure that the act would not put participating physicians in jeopardy in civil or criminal courts. (See clarification.)

The Supreme Court is expected to issue its opinion in June 2006.

If nominee Harriet Miers is confirmed as a replacement for the retiring O'Connor before then, O'Connor won't participate in the decision. Traditionally, the court does not issue an opinion if an outgoing justice is the deciding vote. The court also could also elect to rehear arguments once a new justice is confirmed, which it is likely to do in the event of a 4-4 split.

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This story stated that the Oregon Medical Assn. has "maintained a position of neutrality ever since the Death With Dignity Act was first proposed in the mid-1990s, lobbying only to ensure that the act would not put participating physicians in jeopardy in civil or criminal courts." As a clarification, the OMA is neutral on the issue of physician-assisted suicide per se. But the group supported a 1997 ballot initiative that would have repealed the Death With Dignity Act. In May 2005, the OMA reaffirmed its 1997 position opposing the act.

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