NEWS FEATURE: Assisted Suicide Advocates Vow to Fight Federal Action

c. 2000 Religion News Service PORTLAND, Ore. _ Defenders of Oregon’s doctor-assisted suicide law are virtually certain to battle the U.S. government in court if Congress passes legislation barring doctors from prescribing lethal drugs for that purpose. The legal challenge _ potentially a joint effort by the state government and private physicians and patients _ […]

c. 2000 Religion News Service

PORTLAND, Ore. _ Defenders of Oregon’s doctor-assisted suicide law are virtually certain to battle the U.S. government in court if Congress passes legislation barring doctors from prescribing lethal drugs for that purpose.

The legal challenge _ potentially a joint effort by the state government and private physicians and patients _ would assert that Congress unconstitutionally overstepped its authority and interfered with Oregon’s role in regulating the medical profession.


Ultimately, it could put the six-year-old fight over the state’s doctor-assisted suicide law before a U.S. Supreme Court that’s taken an increasingly positive view of states’ rights.

“It would not be a quixotic gesture, and it would not be a futile political act,” said David Schuman, the deputy state attorney general who is advising Gov. John Kitzhaber on the issue.

A Senate committee on Thursday approved its version of the Pain Relief Promotion Act, which would amend the federal Controlled Substances Act to let doctors use potentially deadly doses of drugs to alleviate pain _ while barring their use in helping a patient die.

Although the bill faces a potential filibuster and competition for time on the Senate’s agenda, backers say they have more than enough votes to pass it in a full floor vote. The House passed a similar version last year 271-156.

Defenders of the Oregon law say it’s too early to say exactly what they will do if President Clinton signs the pain relief act. But advocates say they fully expect it would turn into a serious test case of states’ rights.

“People can rest assured that there will be a constitutional challenge,” said Barbara Coombs Lee, executive director of the national Compassion in Dying Federation and chief petitioner for the original initiative, which voters approved in 1994 and reaffirmed three years later by a 60 percent majority.

Kitzhaber’s spokesman, Bob Applegate, said the Democratic governor and former emergency room physician hasn’t decided whether to join a legal challenge, although he strongly opposes the legislation.


“When you get into suing the federal government, there’s a lot of things you want to take into account,” Applegate said.

But Schuman said the Justice Department has presented some possible legal strategies to the governor at his request. The challenges could take from six months to several years and could play out in several ways.

First, the state could join in the defense of a doctor who is prosecuted by the U.S. Drug Enforcement Administration for prescribing a lethal drug dose.

Or the state, along with physicians and terminally ill patients, could file a lawsuit asking a federal judge to enjoin the government, the Drug Enforcement Administration and the U.S. attorney general from enforcing the restriction on prescribing lethal drugs. That could happen as soon as the Pain Relief Promotion Act becomes law.

Either way, defenders of Oregon’s law would argue that the congressional act violates the 10th Amendment of the Constitution. That amendment says any powers that are not given to Congress by the Constitution belong to state governments or to the people themselves.

Congress throughout the 20th century enacted a wide array of legislation by citing its authority _ written in the Constitution _ to regulate interstate commerce. For instance, in approving the Civil Rights Act of 1964, Congress ended racial segregation in hotels and restaurants by asserting that those facilities were part of the interstate travel and tourism industry.


Likewise, the Controlled Substances Act asserts that Congress can regulate the interstate trade in illicit drugs because it substantially affects commerce.

But Schuman and others argue that the Pain Relief Promotion Act goes further by specifically regulating the practice of medicine within the state of Oregon.

Garrett Epps, a constitutional law professor at the University of Oregon, said that if Congress had such authority, then it could also cite its power to regulate the interstate sale of medical instruments in barring doctors from using them for abortions.

Epps said recent case law suggests the state would have at least a fighting chance before the current Supreme Court, although personal opposition to assisted suicide among conservative justices could also affect the decision.

“It’s about as hard a case to handicap as I can imagine,” Epps said.

The high court has increasingly shown little sympathy toward Congress in such matters.

It recently struck down a federal law making it a crime to possess a firearm within 1,000 feet of a school, saying Congress had failed to show how the law fell within its authority over commerce. The court also struck down a federal law requiring states to take title to nuclear waste. And it struck down part of the Brady gun-control bill three years ago because it required local sheriffs to enforce a federal background check program.

In ruling on the doctor-assisted suicide issue, the court in 1997 upheld state laws prohibiting the practice in New York and Washington.


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But in that 9-0 ruling, the justices made it clear they had only decided there was no such thing as a constitutional right to assisted suicide. They also signaled that they preferred to leave the issue to the states.

“Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide,” Chief Justice William H. Rehnquist wrote. “Our holding permits this debate to continue, as it should in a democratic society.”

DEA END SUO

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