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In a few weeks, the Bush administration will begin round two in its fight to block Oregon’s physician-assisted suicide law. The litigation is rich with conflicts over the interpretation of a federal drug law, the existence of constitutional protections and the primacy of state or federal powers. The battle is over the so-called Ashcroft directive, in which Attorney General John Ashcroft announced last year that he was reversing a department position, held since 1998, that physicians prescribing controlled substances under the law do not violate the federal Controlled Substances Act. Assisting a suicide, Ashcroft said, is not a “legitimate medical practice” within the meaning of the act, and physicians who prescribe, dispense or administer controlled substances to do it violate the law and risk losing their drug licenses. Last April, U.S. District Judge Robert Jones of the District of Oregon found that the directive exceeded the authority granted to the attorney general under the Controlled Substances Act and entered a permanent injunction against its enforcement. Oregon v. Ashcroft, No. 01-1647. In September, Justice Department lawyers will fire the opening salvo in their appeal to the 9th U.S. Circuit Court of Appeals. VANTAGE POINT That Circuit brings a unique vantage point to the legal debate. Seven years ago it upheld terminally ill patients’ choice to end their lives, striking down a Washington law banning physician-assisted suicide. Meanwhile, the U.S. Supreme Court has weighed in on the Washington ban and the one in New York. And the public debate continues. Only Oregon has a law permitting physician-assisted suicide. Its battle with the administration is being closely watched by other states and by health care professionals. The case has “huge national implications” for two reasons, says Kathryn Tucker, legal director of Portland, Ore.-based Compassion in Dying, which represents a group of terminally ill patients in the litigation. “If the directive were to take effect, there would be additional concern in the physician community that prescribing strong pain medication to dying patients could bring scrutiny and sanctions,” she says. “Many, many studies show that programs like that chill the willingness to prescribe. “And, second, this is an unprecedented intrusion into an arena historically left to the states — the regulation of the practice of medicine.” The Oregon act was enacted in 1994 not by the state Legislature but through the initiative process. Its enforcement was blocked for a time by litigation brought by right-to-life organizations. In 1997, state voters defeated an attempt to repeal the law. Since 1997, it has been used by approximately 70 terminally ill Oregonians, the District Court said. The Ashcroft directive was immediately challenged by the state, an Oregon group of terminally ill patients and an Oregon physician and pharmacist. The state made a four-pronged attack on the directive, saying that it: � Violated the federal Administrative Procedures Act by failing to comply with the notice and public comment procedures required for such decisions. � Violated an executive order on federalism requiring all departments to be sensitive to state sovereignty issues. � Exceeded the authority delegated by Congress in the Controlled Substances Act. � Violated the Supreme Court’s rule that agency actions cannot encroach on traditional areas of state power without a “clear statement” from Congress. The Tucker group also argued that the directive violated a Fifth Amendment right to receive pain treatment. They argued that the Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco v. Quill, 521 U.S. 793 (1997) — decisions upholding state bans on assisted suicide — recognized there are circumstances in which efforts to relieve a dying patient’s pain justify the use of medications that may hasten death. “It was our contention that the Ashcroft directive would impair all patients nationwide from getting adequate pain medication and that was a Fifth Amendment violation,” Tucker says. And, they added, the directive violates the U.S. Constitution’s commerce clause and the 10th Amendment. The Bush administration argued that the law makes it unlawful for anyone to dispense controlled substances unless affirmatively authorized by federal law, specifically the Controlled Substances Act (CSA). Nothing in its language, history or regulations, it said, authorizes practitioners to dispense controlled substances to assist suicide. It disputed the idea that states can determine what someone registered to dispense controlled substances may do with them. The government also rejected the constitutional claims, argued that executive orders are not judicially enforceable and said the Administrative Procedures Act does not apply to interpretive rulings, such as the directive. Jones based his ruling against the government on one claim, the statutory interpretation of the law. Congress, he said, “did not intend to override a state’s decisions concerning what constitutes legitimate medical practice, at least in the absence of an express federal law prohibiting that practice.” And he wrote, “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.” Tucker says, “The language in the CSA does have that core phrase — legitimate medical practice. The fact of the matter is what is a legitimate medical practice has always been determined at the state level. “The content or substance of it is formed within each state through a complex amalgam of sources — state medical licensing boards, peer practice which develops standards of care and sometimes state statutes.” Federal law enforcement, she says, is authorized to use the act only against doctors who practice in a way that is not legitimate and not accepted by a state — “pill-mill” doctors or those trafficking in drugs, for instance. “What we have with Ashcroft is the exact opposite,” she says, “an attorney general trying to intrude himself into the sphere of legitimate medical practice.” However, regardless of whether the policy is good or bad, the federal government has the better statutory argument, says Douglas Kmiec, dean of Catholic University School of Law and a Reagan DOJ veteran. “The state can license whomever it wants, but if in fact those doctors are going to be utilizing controlled drugs, then the federal government has interests in assuring they’re being used correctly,” he says. The Controlled Substances Act was amended in 1984, he says, to empower the attorney general to deny, suspend or revoke a practitioner’s registration after determining that it’s inconsistent with the public interest. “That’s hardly a constraining statute,” he says. Assisted suicide was not on Congress’ radar screen when the law was enacted in 1970 or amended in 1984, he says, and the statute doesn’t define “public interest” or “legitimate medical practice.” “If you have a gap or ambiguity, the Chevron framework” — from a Supreme Court ruling outlining when deference to agency actions prevails — “largely allows the executive to fill that in with a reasonable interpretation,” says Kmiec. “There is a good body of authority on assisted suicide, including most professional societies, taking the position it is problematic and should be avoided. All of that is, I think, enough for the attorney general to point to and say, ‘It’s my reasonable judgment, as it is the AMA’s, that assisted suicide is not a legitimate medical purpose and, at least in terms of the authority given me in this statute, I’m not going to license it.’” UNDERLYING ISSUE The issue of federal and state authority underlines much of Jones’ decision, says Marc Spindelman of the Ohio State University College of Law, who has written about the Oregon statute. By embracing a federalism or states’ rights doctrine that supports the state’s position here, Spindelman suggests, proponents of assisted suicide embrace “a set of arguments that are dangerous, or a potential threat” to women’s rights and equality rights generally. “Suppose the decision does confirm that the regulation of the practice of medicine is the state’s job,” he says. “If it really is, it’s difficult to see, for example, why a state shouldn’t be allowed to regulate or prohibit abortion.” Spindelman and others say they will be surprised if the parties limit their briefs to the statutory interpretation issues. Although it held in 1997 that there was no constitutional right to physician-assisted suicide, the Supreme Court did say that it was important for the debate to continue in the “laboratory of the states,” Tucker says. “Part of this whole picture is that as efforts in other states emerge, the data from the Oregon experience is valuable to consideration by those states, and that is what the Supreme Court was really encouraging,” she says. “The fact is we now know from four years of published data that none of the risks speculated about assisted suicide has been realized. That’s so important and why the Oregon experience must be permitted to continue.”

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