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A federal judge has upheld Oregon’s controversial — and the country’s only — physician-assisted suicide law. In a 30-page opinion released Wednesday, U.S. District Judge Robert Jones of the District of Oregon ruled that prescribing lethal medications to terminally ill patients is not a violation of the nation’s Controlled Substances Act, as U.S. Attorney General John Ashcroft had maintained in a November directive. The decision is a victory not only for advocates of assisted suicide, but also for San Francisco litigator Nicholas van Aelstyn, who acted as co-counsel for four of the patient-plaintiffs in the case. Van Aelstyn, an attorney at Heller Ehrman White & McAuliffe, has been working with the group Compassion in Dying on a pro bono basis since 1998. In Oregon v. Ashcroft, 01-1647, Jones wrote, “Congress did not intend the CSA to override a state’s decisions concerning what constitutes legitimate medical practice.” Similarly, continued Jones, “Congress never intended, through the CSA or through any other current federal law, to grant blanket authority to the attorney general or the DEA to define, as a matter of federal policy, what constitutes the legitimate practice of medicine.” Along with the decision, Jones also issued a permanent injunction barring the federal government from prosecuting physicians and pharmacists who prescribe lethal medications to terminally ill patients. While a suit challenging Ashcroft’s move to quash the law was initially filed by the state of Oregon on Nov. 7, van Aelstyn and co-counsel Kathryn Tucker filed a motion to intervene on behalf of nine patient-plaintiffs the following day. Five of those plaintiffs have since died. A doctor and a pharmacist were also plaintiffs in the case. “The decision today truly is a defense of democracy and the rule of law,” said van Aelstyn. “The CSA has always been about drug abuse and trafficking, not about medicine.” The defense attorney from the U.S. Attorney’s Office in Oregon did not return calls for comment. It was unclear whether the Justice Department intends to appeal the decision to the 9th Circuit. The case revolves around the Death With Dignity law, which was passed by Oregon voters in 1994 and took effect in 1997. The statute allows physicians to prescribe, but not administer, lethal drugs to terminally ill people such as cancer patients. To date, 70 patients have used the law to kill themselves. Oregon is the only state in the nation that has passed such a law. In November, Ashcroft issued a memorandum, known as the Ashcroft Directive, declaring that assisting suicide was not a “legitimate medical purpose,” and that “prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA.” In Wednesday’s ruling, Jones rebuked Ashcroft, saying the attorney general had “fired the first shot,” and that he “sought to stifle an ongoing ‘earnest and profound debate’ in the various states concerning physician-assisted suicide.” In upholding Oregon’s assisted-suicide law, Jones deliberately steered clear of evaluating the matter from the pricklier perspective of states’ rights vs. federal government. “As I suggested to the parties during the March hearing, the resolution of this case turns on the CSA and does not require constitutional analysis,” wrote Jones. But according to one attorney who opposes the Oregon law, the court essentially skirted the issue. “If the court isn’t dealing with that federalism issue, it’s missing the point of the entire case,” said Wesley Smith, an attorney with the International Task Force on Euthanasia and Assisted Suicide and author of the book “Culture of Death: The Assault on Medical Ethics in America.” “The issue is who has the power to enforce federal controlled substances regulations and rules, the attorney general or the state of Oregon?” Van Aelstyn, however, said he was pleased that the court had ruled on such narrow statutory grounds. “He ruled squarely on the CSA,” said van Alestyn. “That makes the ruling, we believe, that much stronger when it goes up on appeal.”

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