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A divided panel of the 9th U.S. Circuit Court of Appeals on Wednesday blocked Attorney General John Ashcroft’s attempt to declare Oregon’s Death With Dignity Act illegal. After voters had approved the law, which allows doctor-assisted suicide in the state, Ashcroft issued a directive that declared the practice violates the 1970 Controlled Substances Act. But the 9th Circuit ruled that Ashcroft overstepped his authority. “We hold that the Ashcroft Directive is unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress’s express legislative intent, and oversteps the bounds of the attorney general’s statutory authority,” Judge Richard Tallman wrote. Tallman’s decision went beyond physician-assisted suicide and told the attorney general to stay out of the medical business. “The attorney general’s unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law,” Tallman wrote. 8th Circuit Senior Judge Donald Lay, sitting by designation, joined Tallman. Judge J. Clifford Wallace dissented. The ruling is not expected to cause an upswell in physician-assisted suicides because no patients were kept from taking advantage of the law while the issue was being litigated. Oregon voters first approved the law in 1994 and reaffirmed it in 1997. It gives physicians the ability to prescribe fatal drugs under certain situations. Wednesday’s decision upholds a permanent injunction against Ashcroft issued by Oregon U.S. District Judge Robert Jones. It’s not the first time the 9th Circuit has tackled assisted suicide. In 1997, the U.S. Supreme Court overturned the circuit in Washington v. Glucksberg, 521 U.S. 702. The 9th Circuit had ruled that banning doctor-assisted suicide violated the 14th Amendment. The case was upheld en banc but struck down by the high court. Kevin Neely, a spokesman for Oregon Attorney General Hardy Myers, called Wednesday’s decision “a slam dunk for [Oregon] and certainly a tremendous victory for policymakers in every state.” The Justice Department said it was still reviewing the decision and would not comment about whether it would appeal. Nicholas Van Aelstyn, a partner at Heller Ehrman White & McAuliffe in San Francisco who represented 14 terminally ill patients in the case pro bono, said Wednesday’s ruling doesn’t give the government much ammunition to appeal. “It was a narrow, statutory decision,” Van Aelstyn said. “It did not reach the constitutional issues � nor whether Ashcroft violated the Commerce Clause. That’s good.” Only three of his clients remain alive. Most had obtained the prescription for fatal drugs allowed under the law, but only a few used it while the case was being litigated. The majority made clear it was not taking sides on the policy debate. “We take no position on the merits or morality of physician-assisted suicide. We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care. This case is simply about who gets to decide. All parties agree that the question before us is whether Congress authorized the attorney general to determine that physician-assisted suicide violates the CSA,” Tallman wrote. Nevertheless, Van Aelstyn and Neely, the AG spokesman, both expect government lawyers will appeal. The ruling could also be seen as a blow to the attorney general’s perceived efforts to meddle in states’ affairs. Lawyers have compared Ashcroft’s directive against the assisted-suicide law to his push to bust Californians who take advantage of a voter-approved law that allows marijuana possession for medical reasons. Neely, however, called the issues “apples and oranges” and doubts Wednesday’s opinion will help marijuana advocates. He pointed out that marijuana is a Schedule 1 drug under the Controlled Substances Act, which the prescription drugs at issue are not. “Our position is that the CSA is not applicable,” Neely said. Ashcroft’s directive was based on the CSA. If the government appeals, it will likely take advantage of the issues raised in Wallace’s dissent. Wallace, writing longer than the majority, argues that the appeals court should give more deference to Ashcroft’s interpretation of 21 C.F.R. � 1306.04(a), a regulation that allows federal prosecution of physicians who distribute prescription drugs outside the usual scope of their practice. In fact, Wallace wrote, the text of the Controlled Substances Act demonstrates that Congress intended to regulate not just street drugs but also “any other improper drug use that might have a ‘detrimental effect on the health and general welfare of the American people.’” As for how the upcoming presidential election could affect future court fights over physician-assisted suicide, Wallace himself addressed that question at the end of his dissent. “A change in presidential administrations or a shift in the current president or attorney general’s perspective might precipitate the Ashcroft directive’s rescission,” Wallace wrote. “Although opinions differ over the propriety of assisted suicide, I fully subscribe to Justice [Sandra Day] O’Connor’s canny observation that there is simply ‘no reason to think that the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the [government]‘s interests in protecting those who might seek to end life mistakenly or under pressure.’ � In short, we should trust the democratic process.” The case is Oregon v. Ashcroft, 04 C.D.O.S. 4510.

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