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The U.S. Supreme Court appeared closely divided last week over whether the U.S. attorney general can override the wishes of Oregon voters and ban the use of drugs that hasten the death of terminally ill patients, with retiring Justice Sandra Day O’Connor as perhaps the key swing vote. Gonzales v. Oregon, No. 04-623. The case involves Oregon’s 1994 Death With Dignity Act, which allows mentally competent and terminally ill patients to obtain death-hastening medications. Former Attorney General Janet Reno decided she did not have the authority under the federal Controlled Substances Act to punish doctors or pharmacists for actions taken under the Oregon law. Reno’s successor, John Ashcroft, a long-time opponent of assisted-suicide measures, reversed her determination, finding that assisting suicide is not the kind of “legitimate medical purpose” that allows for exceptions to federal law. Oregon challenged Ashcroft’s rule change, winning at both district and appeals court levels. Last week, Solicitor General Paul Clement defended the Ashcroft decision, since adopted by Attorney General Alberto Gonzales, as being consistent with the strong role federal government has historically played in drug enforcement. Several justices asked skeptically if a future attorney general who opposes the death penalty could unilaterally ban use of drugs for lethal injections in spite of state capital punishment procedures. Clement sidestepped the question by arguing that the possibility had been foreclosed by a 1994 federal death penalty law that adopts execution procedures that are in force in the various states. Making the state’s case, Oregon Senior Assistant Attorney General Robert Atkinson emphasized the “200-year history” of the pre-eminence of states in regulating the practice of medicine. Newly sworn-in Chief Justice John G. Roberts Jr. asked whether allowing different rules in different states would “undermine uniformity” of federal drug law enforcement. Atkinson said that state-by-state differences were not that uncommon. He noted that certain drugs used for palliative care are allowed in some states but not others. Justice John Paul Stevens seemed to think that, as written, federal law authorizes the attorney general to supersede state laws in the interest of “public safety.” Justice Antonin Scalia also seemed supportive of federal power in this instance. If Justice Clarence Thomas joins Stevens, Roberts and Scalia on the side of the government, O’Connor could hold the decisive vote.

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