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Oregon, federal government clash at Supreme Court over assisted suicide

WASHINGTON (BP)–Oregon and the United States squared off before the U.S. Supreme Court over physician-assisted suicide Oct. 5, with the state government arguing its legalization of the practice is covered by its right to regulate medicine and the federal government contending its control of drugs trumps such authority.

New Chief Justice John Roberts presided over the contentious case on only the second day of oral arguments in the high court’s new term. The arguments occurred on a day when Harriet Miers, President Bush’s latest nominee to the Supreme Court, visited with senators in preparation for her confirmation hearings.

In the meantime, Associate Justice Sandra Day O’Connor sat in on the oral arguments. O’Connor, whom Miers would replace if confirmed, announced her retirement July 1 but agreed to stay on until a replacement was ready.

Assisted suicide, which involves a physician prescribing but not administering a drug to take a person’s life, became legal in Oregon in 1997. Oregon remains the only state to legalize the act. Through 2004, Oregon had reported 208 deaths by assisted suicide.

The question the justices are considering in Gonzales v. Oregon is not whether assisted suicide is legal but whether the Department of Justice acted within its authority when it banned the use of federally controlled drugs in such lethal actions.

Oregon won the initial two rounds in the case, first gaining a federal judge’s injunction blocking enforcement of a 2001 order by then-Attorney General John Ashcroft barring the use of drugs regulated by the Controlled Substances Act in doctor-assisted suicides. Last year, a three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 to uphold the block on Ashcroft’s directive.

Solicitor General Paul Clement told the justices the “most natural reading” of federal law is that such an order “falls within the authority of the attorney general,” who is now Alberto Gonzales.

“Physician-assisted suicide and the use of federally controlled substances for physician-assisted suicide are not coextensive,” Clement said, contending there are other methods available for assisted suicide.

Clement agreed states normally regulate doctors but said that “has to be reconciled with the fact that for 90 years” the federal government has regulated drugs.

Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and O’Connor appeared to be the most skeptical of the federal government’s position, while Roberts and Associate Justice Antonin Scalia questioned the assertions of Robert Atkinson, Oregon’s senior assistant attorney general, the most.

Atkinson told the justices he believed Congress intended to “leave the question of what is legitimate medical practice to the states.” He even agreed a state could legalize such drugs as morphine for unorthodox purposes, which some critics later described as “recreational use.”

Associate Justice Anthony Kennedy told Atkinson it seemed Ashcroft had acted in accordance with the law, but Oregon’s advocate said the attorney general’s action appeared “inconsistent with congressional design.” Atkinson argued the attorney general should go to Congress to gain such authority.

At one point, Roberts asked if Oregon’s position doesn’t “undermine federal law and make it unenforceable.”

Afterward, opponents of assisted suicide criticized Oregon’s argument that states have the authority to permit the prescription of drugs for “recreational use” in opposition to federal law.

“There could not be a more gutting of the whole proposition of the federal law forming a uniform standard …,” National Right to Life Committee General Counsel James Bopp told reporters outside the court building. “[T]heir proposition that Congress always intended for the states to do whatever they wanted with these drugs is of course preposterous. There would be no point to a federal law if it were simply up to the states to decide what to do with these drugs under that law.

“We think the critical point is that this is not medical treatment,” Bopp said. “It’s inconceivable that the federal government in adopting the Controlled Substances Act had in mind the idea that state by state we should be able to decide that controlled substances can be used to kill patients under the guise or pretext that it is medical treatment.”

Kathryn Tucker, director of legal affairs for the pro-assisted suicide organization Compassion and Choices, criticized Clement’s argument there are other means to an assisted suicide than the use of federally regulated drugs.

That is a “perverse position for our federal government to take,” Tucker told reporters. Assisted suicide without such drugs would be “by means that are not humane, are not certain, are not peaceful. When a dying patient facing a difficult death wants a peaceful death, they want the means that are efficacious and gentle.”

Patrick Trueman, senior legal counsel for the conservative Family Research Council, told reporters he is “very concerned about the potential outcome. This closely divided court has a few justices, particularly Justices Ginsburg and Stevens, who seem to be looking for a way to legalize or constitutionalize” physician-assisted suicide.

Tucker was extremely optimistic the high court would side with Oregon.

“What I heard in there today is virtually every justice was disinclined to embrace the Department of Justice’s opinion,” she told reporters.

“Even Scalia?” a reporter asked.

“Even Scalia,” she said.

Jay Sekulow said of Tucker’s prediction, “I think that’s an overreach.

“I think it’s a close case,” Sekulow, chief counsel of the conservative American Center for Law and Justice, told Baptist Press. “I suspect right now the way it’s going to line up it would probably be 4 to 4…. I don’t think Justice O’Connor will be sitting when the case’s opinion is actually rendered. If that’s the case, it is likely that the case will be set for re-argument, and I think that’s quite possible here. It’s a life-and-death case, so they’re going to want a full complement of the court.”

If an opinion in the case is not announced before O’Connor leaves the court, her vote will not count. If there are new oral arguments as a result, Miers, or another confirmed nominee, would sit in.

Under such a scenario, Miers “could be the swing vote,” Sekulow said.

In addition to the American Center for Law and Justice, Family Research Council and National Right to Life Committee, organizations that filed friend-of-the-court briefs in support of the federal government included Christian Medical & Dental Association, International Task Force on Euthanasia and Assisted Suicide, Liberty Counsel, the disability-rights organization Not Dead Yet and the U.S. Conference of Catholic Bishops.

Among organizations filing briefs backing Oregon were the American Civil Liberties Union, American Public Health Association and other health-care professionals, the state of California, Cato Institute and members of the Oregon congressional delegation.