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Oregon’s Assisted Suicide Case

October 5, 2005 at 12:00 AM EST
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LEE HOCHBERG: When Caleb Heppner was diagnosed with terminal lung and bone cancer, he thought immediately of the horrid end to his father’s life. He’d died of leukemia.

CALEB HEPPNER: Nobody wants to go through an excruciating last few hours like my father did. I’m thinking about those last hours, when instead of being around my family, being able to talk to them and then pass on very quietly, we’re mopping up blood and they’re trying to manage this horrible, horrible disease process that is just tortuous.

LEE HOCHBERG: With aggressive treatment, he’s outlived his six- to nine-month prognosis. But he’s preparing to use Oregon’s right-to-die law if he needs to. The nation’s only such law allows patients who two doctors say have only six months to live the right to ingest a physician-prescribed lethal medication.

CALEB HEPPNER: Having the law available in Oregon and that that might be an option available to me, gave me a huge sense of release if worse comes to worse there was always that other option. And knowing that, I essentially put those issues about the last few hours of my life, days of my life aside, and went on living.

LEE HOCHBERG: That’s meant peaceful days gardening, reading and writing. But he’s uneasy this week about a Bush administration effort to overturn the law in the US Supreme Court.

CALEB HEPPNER: If it’s taken away, then I know that there is the possibility that I’m going to die a very excruciating death of bone cancer.

LEE HOCHBERG: The high court will rule on whether the Bush administration can legally prohibit Oregon doctors from providing aid in dying when Oregon law expressly allows the practice. Oregon voters passed their right-to-die measure by ballot initiative in 1994, then again by large majority in 1997.

But in 2001, Attorney General John Ashcroft directed the US Drug Enforcement Administration to revoke the licenses of Oregon doctors who prescribed drugs to help patients die. He said such drugs can be used only for “legitimate medical purposes.”

“I hereby determine that assisting suicide is not a legitimate medical purpose,” Ashcroft wrote in his directive.

JOHN ASHCROFT: I certainly believe that people who are in pain should be helped and assisted in every way possible, that the drugs should be used to mitigate their pain but I believe the law of the United States of America which requires that drugs not be used for — except for legitimate health purposes, that those laws need to be enforced, and that’s my responsibility.

LEE HOCHBERG: Oregon sued the administration, claiming it’s the state’s responsibility, not the attorney general’s, to set state medical standards. A US District Court agreed, as did the 9th US Circuit Court of Appeals.

“The Attorney General’s unilateral attempt to regulate medical practices …far exceeds the scope of his authority,” the appeals court wrote in its decision.

DR. R. PETER RASMUSSEN: You’ve got maybe down to a quarter the number of cancer cells than before.

PATIENT: Sounds good to me.

LEE HOCHBERG: Oncologist Peter Rasmussen is one of many Oregon physicians infuriated by the administration’s challenge. He joined the state’s lawsuit, calling Ashcroft’s directive “offensive.”

DR. R. PETER RASMUSSEN: I think morality does enter into this whole arena, but it’s the patient’s morality, not the federal government’s morality. First of all, he’s not a physician; he’s not an expert on what is appropriate and inappropriate medical practice; it’s very clear that what he wanted to do was to just stop Oregon’s death with dignity law.

LEE HOCHBERG: Attorney Kathryn Tucker of the right-to-die group Compassion and Choices argues that as science extends the duration of dying, offering dignity in dying is a legitimate medical practice.

KATHRYN TUCKER: This case is about an unprecedented intrusion of federal power into that domain and in fact by a single unelected federal official.

LEE HOCHBERG: She says Oregon’s law has prompted increased use of hospice and palliative care in the state, and has not been subject to abuse. In seven years, 208 patients have ingested lethal medication. Almost 80 percent of them had cancer. Almost all, 196 of them, died at home. Oncologist Rasmussen says he’s been present at a dozen deaths.

DR. PETER RASMUSSEN: It is simply falling asleep. There are no seizures, there’s no retching, no vomiting, no gasping. It is a very gentle passing into sleep, coma and then death. DR. GREG HAMILTON: Killing a patient has never been a medical purpose.

LEE HOCHBERG: But opponents in Oregon agree with Ashcroft that it’s bad medicine. Oregon psychiatrist Greg Hamilton helped write an amicus brief to the court.

DR. GREG HAMILTON: You can call it aid-in-dying but when you give someone an overdose with the intention of their taking it to die, you’re participating in them killing themselves. You can use all the euphemisms you want, but that’s what’s happening.

If one of my patients is going to die tomorrow and I give them an overdose today, then I’ve killed them today.

LEE HOCHBERG: Hundreds of Oregonians at the end of their lives are watching the case closely. A ruling in Oregon’s favor could pave the way for other states, like California, Vermont and Wisconsin, to pass their own right-to-die legislation.

MARGARET WARNER: Jan, this case, the shorthand and we’ve used it and the tape just used it, this is a right-to-die case. Now this isn’t really about a constitutional right to die, is it?

JAN CRAWFORD GREENBURG: No it’s not. In fact, the court took up that very issue in 1997 and it specifically refused to read the Constitution so broadly to say that the Constitution protected a broad right to die. And in that case in an opinion by Justice O’Connor, the court emphasized that these end-of-life issues were best handled by the states, which were laboratories to kind of look at and experiment and think about how best to handle these critical end-of-life issues. And, in fact the government’s lawyer today, those were some of the first questions that he got particularly by Justice Ginsberg about how he can swear today’s case with that one in 1997.

MARGARET WARNER: Well take us inside the courtroom now. The solicitor general went first. What was his basic argument on behalf of the attorney general?

JAN CRAWFORD GREENBURG: Paul Clement, the solicitor general said that the attorney general had properly interpreted federal law to prohibit this kind of drug prescriptions; that it was not a legitimate medical use and it was not in the public interest. He said the federal Controlled Substances Act was a paternalistic law that it didn’t allow people to make choices.

MARGARET WARNER: And that’s where that phrase “legitimate medical purpose” comes from, right? It gives the executive branch, what, the right to yank any doctor’s license who prescribed drugs that aren’t for legitimate medical purposes?

JAN CRAWFORD GREENBURG: Right. The regulations attached to the law say the drugs must be prescribed for that legitimate medical purpose. And it gives the federal government the right to withhold these prescription privileges from doctors if they violate it.

MARGARET WARNER: All right. So tell us how the justices responded. Start with the new chief justice, John Roberts.

JAN CRAWFORD GREENBURG: Well, he was very active at argument today. And, of course we’ve all been wondering how he would be from the bench. He was replacing a chief justice who was not as active as some of the ones but would also be relatively aggressive at times. Chief Justice Roberts asked lawyers on both sides of this issue very aggressive questions; he saved most of his aggressive questions for the lawyer for the state of Oregon who was defending Oregon’s law. The lawyer for the federal government who said it could block these efforts in Oregon ran into the most trouble from Justices Souter and O’Connor and Ginsberg who were really pressing him on why the federal government could step in here and interfere with these state efforts in Oregon.

For example, Justice Ginsberg referred back to the 1997 right-to-die case and said, look, the government then argued there was no constitutional right to die. It said this is something for the states to decide. How do you square that position with your argument today that the federal government can step in and prohibit these kind of prescriptions, these lethal doses of medication?

And the solicitor general, Paul Clement, said we’re not saying this is to ban all cases of assisted-suicide. There are other ways that people can commit suicide with assistance of a doctor but that doctors simply can’t prescribe these lethal drugs.

And then, of course, Justice Ginsberg immediately said but we’re told that this is a much gentler way to die.

MARGARET WARNER: And then of course it was the turn for Oregon’s lawyer. What did he have to say?

JAN CRAWFORD GREENBURG: Well he said that Congress when it passed this Controlled Substances Act in 1970 did not intend for the federal government to regulate the kind of drugs in this manner, that it never intended to kind of preempt the states from regulating the practice of medicine and that states for hundreds of years have shown that they can responsibly regulate the practice of medicine.

And that was an argument some of the justices had already made in their questions with Paul Clement. Justice O’Connor, for example, said, “Don’t states regulate medicine?” So he came in with some of the justices seeming to be already on his side.

MARGARET WARNER: And then you said here’s where Chief Justice Roberts was really assertive in his questions.

JAN CRAWFORD GREENBURG: That’s right. He seemed very troubled by the fact that this could undermine the federal scheme and the uniformity of federal law. And he raised a number of hypothetical questions. I mean, this is a man who has argued on the other side of the bench and is very well versed with hypotheticals and so, for example, what about a drug, let’s say, morphine, that the state said, well, you can prescribe it for any reason — just to make people happy. One state might say that that’s okay. Is that allowed under federal law?

And the lawyer for Oregon said, well, yes, and if Congress has a problem with that, it can pass a specific law banning it. But again Chief Justice Roberts went back saying again, but doesn’t this undermine the federal scheme and uniformity?

Justice Scalia, also very aggressive in questioning the lawyer for the state of Oregon and saying, you know, Congress — while you say Congress may never have intended to authorize, you know, the attorney general to come in, congress certainly never intended or imagined that states would authorize the use of drugs in this kind of situation.

MARGARET WARNER: So you’ve been watching not this exact court but most of this court for a long time. Are you willing to venture any prediction based on the questioning?

JAN CRAWFORD GREENBURG: Margaret, the court was very difficult to read today. And it showed what one new justice — the impact one new justice can have. It’s more than just one vote. The dynamics of the argument even felt really different. Now this is a court that’s been together for 11 years, as of last June — the longest in any period in history, nine justices have been together. So it became relatively easy in some cases to predict how they would go.

But with the addition of Chief Justice Roberts, it was harder to read, so I wouldn’t venture a guess today.

MARGARET WARNER: And, briefly, are you willing to venture a guess as to whether O’Connor will actually get to vote?

JAN CRAWFORD GREENBURG: I would say no. This is a very controversial case. As Justice Kennedy said explicitly this is a hard case. And we all know that if the court has not decided and released its decision when her successor comes on board, her vote will not count. But that didn’t stop her from really pressing the lawyers today.

MARGARET WARNER: All right. Jan, thanks a lot.