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The Supreme Court appeared closely divided Wednesday over whether the U.S. attorney general can override the wishes of Oregon voters and ban the use of drugs to hasten the death of terminally ill patients, with retiring Justice Sandra Day O’Connor as perhaps the key swing vote. The case Gonzales v. Oregon drew demonstrators outside the Court on both sides of the highly charged debate over the right to die. But inside the Court the case was argued and debated mainly as a question of administrative law: whether former Attorney General John Ashcroft’s 2001 interpretation of the federal Controlled Substances Act to outlaw the use of drugs for assisted suicide is valid — or whether the Justice Department overstepped its regulatory powers. By the end of the hourlong arguments, it appeared possible that the outcome will depend in part on whether the justices issue a ruling before O’Connor leaves the bench. Though most justices did not clearly tip their hands, O’Connor could turn out to be the crucial vote, as she has been for years. But if she departs before a decision is issued, the case could be reargued before a Court that includes nominee Harriet Miers, who could be more likely than O’Connor to support the attorney general’s prerogatives in the case. Wednesday was notable also because it marked the first time Chief Justice John Roberts Jr. has recused in a pending case — a decision that was signaled by his departure from the bench when arguments in the second case, Schaffer v. Weast, began. The Oregon assisted-suicide case stems from the 1994 passage by state voters of the Death with Dignity Act, which allows mentally competent and terminally ill patients to obtain death-hastening medications. When the law, the only one of its kind nationwide, survived legal challenges and took effect in 1997, then-Attorney General Janet Reno decided she did not have the authority under the Controlled Substances Act to punish doctors or pharmacists for actions taken under the Oregon law. Reno’s successor, John Ashcroft, was a longtime opponent of assisted-suicide measures. When he took office he reversed her determination, finding that assisting suicide is not the kind of “legitimate medical purpose” that allows for exceptions to be made under the federal law. The change was made without a public comment period or other procedures that usually accompany new regulations. Oregon challenged Ashcroft’s rule change, winning at both the district court and appeals court levels. Wednesday, Solicitor General Paul Clement defended the Ashcroft decision, since adopted by Attorney General Alberto Gonzales, as part of a history of a strong federal role in drug enforcement. But he was immediately hit with skepticism, as several justices asked him if a future attorney general who opposes the death penalty could unilaterally ban use of the drugs needed for legal 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. Clement also argued that the government’s position does not entirely stop Oregon from allowing assisted suicide. He noted that Dr. Jack Kevorkian, who was prosecuted for helping patients kill themselves, used drugs that are not forbidden under the CSA. But Justices David Souter, Ruth Bader Ginsburg and Anthony Kennedy, along with O’Connor, seemed dubious, with Kennedy calling it “an odd statutory scheme” if the federal government can prohibit use of a drug that Oregon law allows to be prescribed. Justices seemed struck, also, that Ashcroft’s unilateral action seemed to be unique in the history of drug regulation. 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. But Roberts 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. “There is no history,” Atkinson said, of the attorney general enforcing drug laws against “a doctor who acts according to state law.” But Justice John Paul Stevens seemed to think that, as written, the CSA has language that 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 Justices Stevens, Roberts, Scalia and Clarence Thomas side with the government, O’Connor could hold the decisive vote. In the second case argued Wednesday, Schaffer v. Weast, Roberts declined to comment on the reason for his recusal. The case, which originated in the Montgomery County, Md., public schools, is an important dispute under the Individuals With Disabilities Education Act. Roberts lives in the county but likely recused because Montgomery County schools Superintendent Jerry Weast was represented by Gregory Garre of Hogan & Hartson, where Roberts led the appellate practice before joining the U.S. Court of Appeals for the D.C. Circuit more than two years ago. Garre and Roberts worked closely together. The Hogan firm did not enter the Weast case until after Roberts left, but Roberts recused anyway, raising questions about what will happen with future Supreme Court cases handled by Hogan and, specifically, handled by Garre. Garre is switching jobs today to join the Justice Department as a deputy solicitor general, a position in which he will likely appear before the high court five or more times per term.

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