Supreme Court Weighs Assisted Suicide Case

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Supreme Court Justices

Seen in enlarged version: Justices Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, Chief Justice John Roberts, Justices Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas and Stephen Breyer, Oct. 3.

The Supreme Court hears arguments Wednesday on a challenge to the only state law in the country that authorizes doctor-assisted suicide for terminally ill patients. The law allows doctors to prescribe lethal doses of drugs.

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STEVE INSKEEP, host:

This is MORNING EDITION from NPR News. I'm Steve Inskeep in New Orleans.

RENEE MONTAGNE, host:

And I'm Renee Montagne in Washington.

Today, the US Supreme Court hears arguments in a major case involving questions of life and death, federal vs. state power. At issue is the Bush administration's challenge to the Oregon Death With Dignity Act. It's the only state law in the country that authorizes doctor-assisted suicides for terminally ill patients. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Oregon voters have twice passed the Death With Dignity law, the second time by a large margin. The law allows doctors to prescribe lethal narcotics to Oregon residents who've been certified by two physicians as psychologically unimpaired and having six months or less to live. In the first seven years that the law was in effect, 208 people used doctor-prescribed medications to end their lives, according to statistics maintained by the state. Today, however, the Bush administration will tell the Supreme Court that the state is not free to authorize such doctor-assisted suicides because that is not a legitimate medical use of federally regulated drugs and is not permitted under the federal Controlled Substances Act. As a result, the administration will argue it can yank the prescription-writing license of any doctor who prescribes drugs to terminally ill patients for use in ending their lives.

The role of the federal government in this case has a tortured history. When Oregon initially passed its law and it was upheld by the lower courts, then-Senator John Ashcroft and others wrote to then-Attorney General Janet Reno asking her to challenge the state law as a violation of the Federal Controlled Substances Act, the CSA. Reno, however, wrote back that there was no evidence that Congress, in enacting the CSA, meant to displace the states in regulating the medical profession. And she said there was no justification for going after doctors who fully complied with the state's Death With Dignity law. Senator Ashcroft and others then sought twice to amend the federal law to override the Oregon law. They failed. But three years after Attorney General Reno's letter, George Bush became president and John Ashcroft became attorney general. Ashcroft promptly reversed Reno's legal judgment but was stymied again when a federal appeals court blocked his action.

Now, however, the Supreme Court has agreed to look at the issue, re-igniting a national debate about end-of-life issues and state's rights. Defending the law is the state of Oregon, a doctor, a pharmacist and a group of terminally ill patients, like 59-year-old Jack Newbold, who has bone cancer, is in hospice care and has a prescription he can use if he chooses.

Mr. JACK NEWBOLD (Terminally Ill Patient): It's--one of the most intimate moments in anybody's life is birth and death, obviously. And I don't see where the federal government has a right to meddle in that affair, especially in light of the fact that the people of the state of Oregon have voted twice now overwhelmingly to allow hastened death, as they call it.

TOTENBERG: The case being heard by the Supreme Court today is not about whether the Constitution guarantees a right to die. In 1997, the high court unanimously rejected that argument, but at the same time, appeared to invite states to experiment in this area. Indeed, Justice Sandra Day O'Connor, in her concurring opinion, referred to the states as laboratories for experimentation. The question now in the Oregon case is whether Congress precluded such experimentation in the Controlled Substances Act, or more specifically, whether the Bush administration properly interpreted the CSA to bar such state experimentation with federally controlled drugs. Former Attorney General Ashcroft declined to be interviewed for this broadcast, but the arguments the government makes in this case are echoed by pro-life groups who filed briefs in the case. Jay Sekulow filed a brief for the American Center for Law and Justice.

Mr. JAY SEKULOW (American Center for Law and Justice): These are federally controlled drugs that are used and allowed for specific purposes. So you've got legitimate drugs which in the view of the United States are being used for an illegitimate purpose. And when you have that kind of conflict, our position is that the federal control of those narcotics controls the state law. You can't have the states re-regulating federally controlled substances.

Mr. ELI STUTSMAN (Terminally Ill Patients' Representative): It's a tremendous power grab against the states.

TOTENBERG: Eli Stutsman represents a group of terminally ill patients and two medical professionals in the Oregon case.

Mr. STUTSMAN: It's crucial to understand that the Controlled Substances Act is a federal anti-drug law. The goal is to prevent drug trafficking and drug diversion. That simply is not happening in Oregon under the Oregon Death With Dignity Act.

TOTENBERG: Oregon Attorney General Hardy Myers adds that the federal government has in the past punished doctors for engaging in drug trafficking. But the federal law, he says, does not allow the federal government to regulate the practice of medicine. That, he says, is up to the states.

Attorney General HARDY MYERS (Oregon): It's historically been a key area of state regulation, and in the Controlled Substances Act, there is no indication that Congress meant to give the attorney general the authority to invade to displace that traditional state regulation.

TOTENBERG: The Federal Controlled Substances Act, however, does ban the distribution of drugs outside the course of, quote, "professional practice," and the attorney general, in regulations promulgated by the Bush administration, has defined that to mean, quote, "legitimate medical practice." Deliberately hastening death for terminally ill patients, the administration argues, is never a legitimate practice. Again, Jay Sekulow.

Mr. SEKULOW: It's the illegitimate utilization of a legitimate narcotic. In other words, a narcotic was approved for specific purposes, but now it's being applied in a way that was not intended by the manufacturer or, for that matter, intended by the regulatory authorities when they approved it for general use through prescriptions.

TOTENBERG: Kathryn Tucker, counsel for Compassion and Choices, counters that the courts should not simply defer to the administration's interpretation of the federal law because there was no public notice or comment before issuing the regulations.

Ms. KATHRYN TUCKER (Attorney): Should it be Attorney General John Ashcroft, who has no medical training, no expertise in this subject, making that decision for the nation?

TOTENBERG: Tucker notes that statistics amassed by the state of Oregon since enactment of the law do not bear out fears that it would be the poor, the uninsured and the uneducated who would most often avail themselves of doctor-assisted suicide. According to the most recent report compiled by the state covering the first seven years, the 208 patients who used the law were different from the 64,706 Oregonians who died from the same underlying diseases. The 208 were better educated; all but five were white; 89 percent had medical insurance of some kind and 86 percent were enrolled in hospice. As for the doctors who wrote the prescriptions, each year, the vast majority wrote only one prescription and not all prescriptions were used. As cancer patient Don James(ph) puts it...

Mr. DON JAMES (Cancer Patient): It's comforting to have that option.

TOTENBERG: The state of Oregon contends that under established rules, the court should not defer to the attorney general's interpretation of the federal drug law without a clear statement from Congress that the attorney general is to have that power. But the Bush administration argues a contrary set of court precedents. Jay Sekulow.

Mr. SEKULOW: When you have comprehensive legislation, the regulatory scheme or framework for enforcement is left to the agencies. And here, the agencies approached it in a particular way.

TOTENBERG: If Oregon doesn't like the regulations, he says, the state should get Congress to pass a law changing them. The Bush administration notes that in enacting the regulations, it canvased the country's medical organizations and concluded that physician-assisted suicide is not a legitimate medical practice. None of the nation's major medical organizations, however, has filed a brief supporting the administration, and a few, like the American Public Health Association and the American Academy of Pain Management, have filed on Oregon's side. Oncologist Peter Rasmussen, one of those who brought this case against the Bush administration, notes that organized medicine has been late in dealing with end-of-life issues. Indeed, the profession initially fought hospice, a grassroots movement that insisted that doctors ease the dying process for patients.

Dr. PETER RASMUSSEN (Oncologist): I think we're seeing a little bit of the same thing with the Death With Dignity Act. This was not pushed by any physician or professional group. This was a grassroots movement of people who were saying we should have our physicians helping people be comfortable at the end of life. It's really missing the point to say that they're dying from the medication. They certainly are, but they were very soon going to die from the cancer.

TOTENBERG: Now the issue is in the hands of the Supreme Court. Nina Totenberg, NPR News, Washington.

MONTAGNE: You're listening to MORNING EDITION from NPR News.

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