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The U.S. Supreme Court Tuesday upheld an Oregon law that allows doctor-assisted suicide. By a 6-3 vote, the court said the U.S. Justice Department may not use a federal drug law to override the state law.
Oregon physician Peter Rasmussen was outraged five years ago when then-Attorney General John Ashcroft issued a directive barring statewide distribution of drugs used for assisted suicides. The federal government argued such drugs can be used only for "legitimate medical purposes," and that didn't include suicide.
DR. PETER RASMUSSEN:
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.
Oregon psychiatrist Greg Hamilton said his state's right to die law, the only one of its kind in the nation, simply allowed doctors to kill their patients.
DR. GREG HAMILTON:
If one of my patients is going to die tomorrow and I give them an overdose today, then I've killed them today.
But a majority of Oregon voters supported the law, approving it twice. It gives a patient, who two doctors agree has only six months to live, the right to ingest a physician-prescribed lethal medication.
More than 200 people have taken advantage of the law since it took effect in 1997. John Ashcroft tried to stop the practice using federal drug laws, so the state of Oregon sued the Bush administration, claiming only the state, not the U.S. Attorney General, has the authority to set medical standards. Two lower federal courts agreed, and today, so did the U.S. Supreme Court. By a 6-3 decision, it ruled that Attorney General Ashcroft's directive was unlawful, unenforceable and that he had overstepped his authority.
With us now is Marcia Coyle, Washington, D.C. Bureau Chief and Supreme Court correspondent for the National Law Journal.
And, Marcia, both in the argument and in the ruling today, this wasn't the Supreme Court speaking on the right to die, was it?
No, not at all. In fact, Justice Anthony Kennedy, who wrote the majority opinion, said at the outset that this case is the product of the debate, the moral and political debate over assisted suicide. But the issue before the court in this case really had to do with interpreting a federal statute, the Controlled Substances Act, to see whether it gave the attorney general the authority to prohibit physicians from prescribing regulated drugs for assisted suicide even when its state law allows them to do it.
So it was more of a states' rights case than an assisted suicide case?
It was partly a states' rights case but I would say it was really more of a statutory interpretation case, sort of the bread and butter stuff that the Supreme Court does in most of its cases. They were interpreting a statute.
So what basis did the court majority give for overruling the federal government, the executive branch?
The court basically rejected all of the government's arguments and, I'd say, followed the state of Oregon's arguments very closely. Justice Kennedy said that Congress gave the attorney general limited powers under the federal Controlled Substances Act.
The attorney general can register physicians, revoke their registration or suspend it to write prescriptions, and the attorney general can control the listing of drugs in certain schedules under the act.
But nowhere within the act was a broad grant of power to make assisted suicide criminal. The courts said that if you accept the government's argument the power to criminalize would be unrestrained. The attorney general could criminalize physicians' conduct whenever the attorney general felt that the conduct was illegitimate.
The court majority also felt that the government's claim to authority here really clashed or conflicted with the design and the objective of the Controlled Substances Act. The federal law is designed to combat illegal drug dealing and drug trafficking as it's conventionally understood. The medical profession is regulated here to ensure that physicians don't use their prescription writing to deal in drugs.
There is no connection between that and assisted suicide, according to the court, so the attorney general overstepped his authority in banning the use of prescription drugs for assisted suicide in this instance.
The final vote was 6-3. Who was in that six-member majority?
Everybody except Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Justices Scalia and Thomas wrote dissents. Justice Scalia said that he felt perhaps the decision was driven more by the belief that assisted suicide as a subject was no business of the federal government. But he thought the Congress clearly gave the attorney general authority here. The attorney general can act in the public interest in terms of registering and revoking the registration of physicians.
He said the overwhelming opinion of the medical community today is that assisted suicide is not a legitimate medical practice so the attorney general can act in the public interest.
Justice Thomas felt that the ruling was inconsistent with the court's rulings on state rights — most recently the one in which the court used the Controlled Substances Act to knock down California's medical marijuana law.
Justice Kennedy, to get back to your federalism point, did say that the regulation of the medical profession is a traditional state power but this specific act, he felt, worked in harmony with that and so there was no federalism violation.
Well, Justice O'Connor, outgoing Justice O'Connor, voted with the six-person majority —
— so even if she — if her retirement had been made final, the majority would have prevailed on this one. But more eyes seem to be turning in the analysis toward Justice Kennedy, who wrote the majority opinion.
And it was clear during the oral arguments on this case that Justice Kennedy could go either way. And it's also theorized that once Justice O'Connor leaves the bench — and we know her as a key pivotal vote in many of these close cases — that Justice Kennedy may well fulfill that role. He wasn't pivotal here, but he was very important. Also, Ray, this was Chief Justice Roberts' first dissent on the bench. And he did join the court's most conservative members.
Marcia, thanks a lot.
Now, for the implications of today's Supreme Court decision, we are joined by: Kathryn Tucker, director of legal affairs for Compassion and Choices, an advocacy group for choice in care at the end of life — she represented the patients in the case decided today; and Jim Bopp, president of the National Legal Center for the Medically Dependent and Disabled — he filed an amicus brief in opposition to Oregon's assisted suicide law.
Kathryn Tucker, your reaction to today's ruling?
Well, we're very pleased, Ray. This decision allows the Oregon law to continue operating as it has for the past eight years. This gives tremendous comfort to terminally ill patients in Oregon who, in facing protracted, difficult deaths know they have the option for a peaceful and humane death if their suffering becomes intolerable. So their right to make that choice is preserved.
It's important also to patients nationwide because the Ashcroft directive potentially would have posed a terrible threat to patients everywhere who simply want good, attentive, pain and symptom management as they're dying. And so we have dodged that risk with the court's ruling today.
And, Jim Bopp, what did you see in looking at both the majority and the dissents?
JAMES BOPP, JR.:
It depends on how you want to look at the case. If you look at it as a legal case, in other words, what issues were involved as Marcia has explained, this would make a good case for Administrative Law 101 where you talk about how statutes are to be interpreted and when a federal bureaucrat interprets that statute how much deference should the courts give to that interpretation.
So it was a very technical federal law question about both the authority of government officials to interpret congressional acts and also the interpretation of congressional laws themselves. So, the only real intersection with assisted suicide here is that the people in Oregon have chosen to have physicians use controlled substances to kill patients.
Now, they could have picked, you know, use of carbon monoxide administered by someone, a lay person, and of course that would have then not implicated the statute at all.
You've suggested that the ruling is technical and narrow. But in its effect does it make it easier for states to write right-to-die legislation? Does it sort of clear the table of it?
Well, the proponents of assisted suicide have chosen doctors to be the ones to kill their patients.
Now, the medical profession, as Marcia reported, you know, they reject that killing patients through assisted suicide like in Oregon is medical care, and they don't want to be involved in that. So, to the extent that that has been the choice of the advocates of this position, well, then they can still use doctors for that purpose.
Kathryn Tucker, what do you —
If I might —
Yeah. If I might jump in there, the Oregon law does permit physicians to write prescriptions for their patients who are seeking a humane and peaceful death. And that's because we know that it is controlled substances that make a gentle and peaceful death possible.
Unfortunately, opponents such as Mr. Bopp like to suggest that non-humane methods might be more appropriate. We don't believe that. We believe that a patient who is coming to the end of life deserves to be able to turn to their physician in that doctor-patient relationship and have a full exploration of options including hastening impending death in a peaceful, gentle way, and it's not the case that physicians oppose that.
In fact, every poll nationwide of physicians shows a strong majority favoring patients being empowered to make this choice and a larger percentage of citizens nationwide support that choice.
You've already suggested that you support current Oregon statute. But what do you see as the bottom line effect of today's ruling?
Besides letting Oregon's law stand, will it make it easier for the other states contemplating laws of this kind to write them without anticipating federal interference?
Well, it certainly lifts a cloud of uncertainty that had been hanging over the question of whether states had the sovereignty to do this. And that cloud has now dissipated.
There is a measure pending in California modeled after the Oregon law, very strong public support for it, strong support in the state legislature, and I think that that state can look to its neighbor, Oregon, and examine carefully what has happened over the past seven years.
And what we've seen is that none of the risks that were speculated as possible or likely have actually presented. And so policymakers and citizens have that data. They can examine it closely and feel comfortable knowing that passage of this law poses no harm and no risk and provides an option that is very important for the comfort of a certain fraction of dying patients.
And, conversely, James Bopp, there are states that have already written laws to head this off, to make sure it does not become legal in their states. Does this provide this ruling any clarity if you're a state attempting to do that or a legislator who'd like to spearhead that kind of legislation?
No. The states have always had the authority to prohibit assisted suicide. The vast majority of states have such laws because they recognize that it is really a form of discrimination to say, well, your life is not worth living and therefore we're not going to protect your life from assisted suicide because you have some condition or illness or disability.
And that's why the disability community is really concerned about laws such as Oregon's that could be used in the context of concern about the cost of medical care, can be used to pressure people with disabilities to agree to assisted suicide or shortening of their life in order to relieve these cost pressures.
Often when people are advocating or opposing very hot issues, they look for a test case. Will this part of the law need another case to go before federal courts and high courts in order to clarify what's medicine, what's not, what's treatment and what's not, some of the issues you've suggested?
Yes. This case, of course, did not involve any of that really. And I think now what we are likely to see is an effort in Congress to clarify what has been the longstanding policy.
It was the Clinton administration that reversed the drug enforcement administration's long-held policy that controlled substances should not be used to kill patients. Really, Attorney General Ashcroft restored that policy.
But I think we can see efforts in Congress to make it clear that, you know, the federal government should not be involved in assisted suicide. They've already voted to ensure that the there will be no funding or no support or — for assisted suicide with federal funds.
I think we'll see an effort in Congress to clarify the law that really has existed all but a few years in the Clinton administration.
So, Kathryn Tucker, your work on behalf of your organization is certainly not over. It sounds like there are other challenges yet to come.
Well, we'll certainly continue to advocate for patients nationwide who want the comfort of having this choice available to them.
I have to say it's just such a shame to hear this referred to as somebody being killed or somebody having to agree to use this law. What this is, is a choice for a patient facing a difficult death to be able to choose for themselves without coercion, without pressure, but with full information from their physician of many choices.
They can choose aggressive pain and symptom management, hospice care, but there is a fraction of patients for whom the dying process will be so intolerable even with excellent pain and symptom management that this choice preserves their dignity; it preserves their autonomy and it's important to make this available. It's not forced on anyone. It's 100 percent the patient's choice. And that should be a choice that we as Americans know we have in our last days.
Quick response, Jim Bopp.
The problem with that, I mean that is a whitewash of the situation. The situation is, is that the vast majority of people who would consider assisted suicide do so because of clinically diagnosable simple depression. The association between depression and suicide is like 95 percent. So when we have people in Oregon that are asking for assisted suicide, we have people who are depressed, who need treatment, who need care, not be essentially written off, given a drug and left to die.
Thank you —
No patient in Oregon can use the law who is depressed.
Guests, thank you very much.
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