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WASHINGTON — When 76-year-old Dick Farris of Portland, Ore., was diagnosed with pancreatic cancer in February 2002, he knew what was coming. Both Farris’ father and two brothers had succumbed to the illness. “As soon as he learned what it was or suspected, he told the doctor he wanted out,” says Gloria, Farris’ wife of 16 years. Farris lost weight rapidly, developed sores in his mouth so he could not swallow and had raging fevers at 105 degrees. “By the first weekend in March, I was shocked to see how he was a shadow of what he had been,” Gloria Farris says. As an Oregon resident, Farris was able to avail himself of the Oregon Death With Dignity Act to hasten his death. The 1994 law gives Oregon doctors the authority to prescribe controlled substances to mentally competent, terminally ill patients who are within six months of dying. Surrounded by his wife and family, Farris took his last breaths. “I said, ‘I’ll see you in the morning,’” Gloria Farris recalls. “Then he said OK and drank the rest of [a liquid barbiturate]. It was so peaceful. He just went to sleep in my arms.” The Death With Dignity Act now faces its own potential demise. A Bush administration challenge to the Oregon law goes before the U.S. Supreme Court at its private conference today. At the conference the justices will discuss whether to grant review in Gonzales v. Oregon (formerly Ashcroft v. Oregon) , along with dozens of other cases. Gloria Farris, a self-described conservative, says that because of the Oregon law, her husband was able to avoid much pain and suffering. Since 1998, some 171 Oregonians have also relied on the assisted suicide law. In filing the challenge in November, then-Attorney General John Ashcroft was seeking to overturn a May 2004 2-1 decision from the Ninth Circuit U.S. Court of Appeals that upheld Oregon’s law. Judge Richard Tallman wrote the majority opinion; Senior Judge J. Clifford Wallace was the dissenter. The basis for the litigation is an interpretive rule that Ashcroft published in the Federal Register. Ashcroft, a longtime opponent of assisted suicide, stated that Oregon’s practice violated the Controlled Substances Act because it lacked a “legitimate medical purpose.” The directive said that doctors who prescribed controlled substances to assist death could lose their federal prescription licenses. The state of Oregon, a group of terminally ill patients and a physician-pharmacist challenged Ashcroft’s interpretive rule in the U.S. District Court for the District of Oregon. Yet this politically charged clash between people on both sides of the assisted-suicide debate may ultimately be decided on more mundane statutory grounds. “The question is about the scope of the Controlled Substances Act,” says Kathryn Tucker, an attorney for Compassion & Choices, a group that provides emotional and legal support to individuals and families facing end-of-life choices and that represents the Oregon patients. “The act was designed to prevent the diversion of controlled substances into the black market or into the hands of those who would use them to abuse substances. It has nothing to do with the Death With Dignity Act.” Oregon and others claim that the Controlled Substances Act is primarily a drug enforcement measure. The act was only intended to give the federal government interstate and intrastate control over “trafficking in illegal drugs, such as heroin and marijuana, and � diversion of legitimately produced controlled substances into illicit channels,” writes Eli Stutsman, an appellate specialist who represents the physician-pharmacist plaintiff in Gonzales. The Bush administration, however, holds a more expansive view of the federal law, arguing that the federal government may regulate controlled substances in all contexts under the act. In its response to the Oregon challenge, the administration writes that it is “the CSA’s scheme to control all manufacturing, possession and distribution of any scheduled drug.” With the federal law controlling, the Bush administration says Oregon’s law cannot stand. The administration argues that because assisted suicide is not a “legitimate medical purpose” under the Controlled Substances Act, a “positive conflict” with Oregon’s law exists, thus pre-empting it. The administration further argues that the actual “taking of drugs to commit suicide is ‘drug abuse.’” Oregon and others reject this argument. “It’s not drug abuse to consume medicine to have a peaceful death,” says Tucker, the lawyer for the Oregon patients. “Drug abuse is the use of drugs to get a high or to sustain addiction. This is not what’s happening when patients are trying to have a peaceful death.” Oregon supporters don’t see the “positive conflict.” They say that the Controlled Substances Act cannot govern a legitimate state medical practice, a right traditionally reserved by the states. “The Controlled Substances Act and narcotics law is not an all-powerful policy pronouncement to usurp states’ rights or practice of medicine,” says Stutsman. Stutsman emphasizes, “We’re not a fringe group trying to use helium, or Jack Kevorkian.” Stutsman, who helped draft the Death With Dignity Act, says that Oregon’s law is based on a clinical model and current medical practice. Oregon voters have twice approved the law, in 1994 and also in 1997. In an amicus curiae brief filed by Focus on the Family and the Family Research Council, attorneys argue that pre-emption — the supremacy of federal law over state law — and policy concerns are determinative. “Our interests are really on the moral side,” says Patrick Trueman, senior legal counsel for the Family Research Council. “We believe all life has value and that a doctor’s role should be to heal and not to kill.” In its brief, the group likens assisted suicide to the Nazi practice of murdering Jews and other groups. But in an amicus brief filed by the American College of Legal Medicine, the group writes that the law recognizes as legitimate such minority medical practices as assisted suicide. Oregon’s supporters also say Supreme Court precedent is on their side. The justices last considered the issue of assisted suicide in the 1997 case Washington v. Glucksberg. Although the court in Glucksberg ultimately upheld a state ban on assisted suicide, it left the issue to the states. “Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide,” the court concluded. “Our holding permits this debate to continue, as it should in a democratic society.” In Justice Sandra Day O’Connor’s oft-quoted concurrence, she referred to the states as laboratories for experimentation in the arena of assisted suicide. At the time that the court wrote its opinion, Oregon was one such “laboratory.” The Ninth Circuit, in Oregon v. Ashcroft , agreed. After citing Glucksberg , the court wrote “our concept of federalism � requires that state lawmakers, not the federal government, are ‘the primary regulators of professional [medical] conduct.’” The Bush administration claims that opinion could lead to confusion, allowing for 50 different results in the 50 different states. Another key issue in the case is the attorney general’s authority under the Controlled Substances Act. Oregon supporters, for example, say the secretary of Health and Human Services determines what is a legitimate medical purpose, not the attorney general alone. The Bush administration counters that the Controlled Substances Act gives the attorney general broad authority over determining drug schedules. Although Oregon supporters say it’s unlikely the Supreme Court will grant review, the justices have a history of taking up controversial decisions out of the Ninth Circuit and overturning them. That’s a result Gloria Farris hopes to avoid. “I feel that if the people involved in doing it really understood how careful the law is, they would view it differently,” she says. “I can’t believe anyone would view this as anything but humane and beautiful.” OTHER CASES UP FOR REVIEWTum v. Barber Foods , 04-66. Whether, under the Fair Labor Standards Act, food processing employees must be paid for their time changing into protective gear. • National Taxpayers Union v. Social Security Administration , 04-484. Whether a First Amendment claim against the constitutionality of an agency’s enforcement action may be brought prior to the agency’s issuing of its final order. • Taxpayers of Michigan Against Casinos v. Michigan , 04-581. Whether states have authority to regulate Indian gaming under the Indian Gaming Rights Act in the absence of a tribal-state compact. • Domino’s Pizza v. McDonald , 04-593. Whether a corporate president and sole shareholder who was not formally party to the contract has standing to sue under 42 U.S.C. � 1981, which forbids racial discrimination in the making and the enforcement contracts. • Public Utility District No. 1 of Snohomish County, Wash. v. Dynegy Power Marketing , 04-621. Public utility’s state law claims alleging market manipulation of electric power during California’s 2000-01 energy crisis. • Glendale Federal Bank v. United States , 04-626 and 04-786. When is restitution available to private parties in breach-of-contract actions against the government? • McBride v. Ortiz , 04-668. When prisoners’ civil rights actions have both exhausted and unexhausted claims under the Prison Litigation Reform Act, does total exhaustion rule apply? • Schaffer v. Weast , 04-698. Whether parents or the school district carry the burden of proof at an administrative hearing under the Individuals With Disabilities Education Act. • Doane v. Educational Credit Management , 04-728. Whether student loans are dischargeable in bankruptcy. • H&, 04-751. Whether an arbitration clause may ban a class action. • Maples v. Alabama , 04-765. Whether a prisoner may appeal a denial of post-conviction relief when the prisoner’s counsel commits error. • Bonifacio Vitug Sagana v. Tenorio , 04-774. Whether the Commonwealth of Northern Mariana Island’s labor laws discriminate against nonresident aliens in violation of the 14th Amendment. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein& Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. He represented the respondent inTum v. Barber Foods , 04-66. Marya Lucas is an intern withLegal Times, aRecorder affiliate based in Washington, D.C.

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