c. 2005 Religion News Service

WASHINGTON _ After 11 years, two referendums and a court case of four years, the fate of Oregon’s experiment with doctor-assisted suicide remains in doubt as Supreme Court justices appear split over its potential to subvert federal authority.

Oregon’s law allows doctors to prescribe lethal doses of painkillers to terminally ill patients. But the Bush administration tried in 2001 to render the law ineffective by ruling that assisted suicide was not a “legitimate medical purpose” of federally controlled drugs.

The question the justices must resolve is Congress’ intent in writing the Controlled Substances Act. Did it want only to stop illegal traffic of prescription drugs? Or did it want to give federal agents discretion to decide what was in the public interest?

“It’s a tough case,” said Justice Anthony Kennedy, one of several who expressed ambivalence about the outcome during oral arguments Wednesday (Oct. 5).

Lower courts so far have defended the one-of-a-kind Oregon law. But during oral arguments, only one justice, Ruth Bader Ginsburg, came close to saying the federal government should not interfere.

Ginsburg cited a unanimous Supreme Court ruling that upheld Washington state’s ban on assisted suicide. In that ruling, she said, the justices “seemed to assume that physician-assisted suicide was a matter for the states.”

Defenders of the Oregon law said their case hinges on a majority of the justices taking a narrow view of Congress’ intent. Congress never mentioned assisted suicide anywhere in the 35-year-old drug law, so federal agents should stay clear, they said.

“Our position all along has been that Congress intended to leave the regulation of medicine to the states and that it expected the states to act in a responsible manner,” said Robert Atkinson, Oregon’s senior assistant attorney general who argued the state’s case.

But the Bush administration, represented by U.S. Solicitor General Paul Clement, argued that Congress’ intent was broad. Congress has a long history of regulating drugs to protect the public interest, he said, and the unusual circumstances surrounding assisted suicide should invite federal scrutiny.

“I can think of no other medical substance where a doctor can prescribe it but not administer it,” Clement said.

The session was typical of Supreme Court arguments, as the justices peppered Clement and Atkinson with rapid-fire questions in a devil’s-advocate style.

Justice Sandra Day O’Connor, for example, asked Clement whether an attorney general who opposes the death penalty could use the Controlled Substances Act to prevent lethal injections. Then she asked Atkinson about a hypothetical situation in which states allow steroid use for bodybuilding.

The justices mostly avoided debating the propriety of assisted suicide even though three _ O’Connor, Ginsburg and John Paul Stevens _ are cancer survivors and the late Chief Justice William Rehnquist died of thyroid cancer this summer.

The exception was Justice Antonin Scalia, who said using drugs for assisted suicide fell outside the scope of medical practice. Prescribing drugs for assisted suicide was “unthinkable,” he said, and was like “prescribing cocaine for recreational use.”

Pro-life and some religious groups have supported the administration’s effort to block the Oregon law and said they hoped the court would take Scalia’s cue.

“We think the critical point is that this is not medical treatment,” James Bopp Jr., a lawyer for National Right to Life, told reporters gathered outside the court. “It is the opposite of medical treatment. It is doing harm to your patient.”

After the session, Atkinson said he was happy with how the arguments played out. But he also said it was impossible to predict how the judges would rule based on the questions they asked.

“I’ve been arguing appeals for 30 years, and I’ve learned that the questions don’t tell you much about where the opinion is going to go,” Atkinson said. “They will push on someone very hard and then write an opinion supporting their position.”

Atkinson said he was glad that the debate centered on issues of federalism _ whether the federal government can override state law.

“That is the issue that we think is the most important issue in the case and the one we are hoping the court will focus on when it makes its decision,” Atkinson said.

Kathryn Tucker, a lawyer representing terminally ill patients, said the case for the Oregon law would have been made stronger if the human impact had been discussed. Atkinson “should have seized that opportunity” in his argument, she said.

It was the first major case for Chief Justice John Roberts, who took over for Rehnquist on Monday, the first day of the court’s fall term.

Roberts remained silent for the first 20 minutes of the session, breaking in to ask Clement to give an example of the attorney general overriding state medical practices. When Clement responded with an example involving the Food and Drug Administration, Roberts retorted, “That’s the FDA.”

But for most of Clement’s argument, Roberts was quiet. As Atkinson began his argument, Roberts leaned forward and became more aggressive. His main concern appeared to involve how the federal government could uniformly enforce drug laws if states can allow the use of illegal drugs.

A decision in the Oregon case is expected in the spring. But because of O’Connor’s pending retirement, it’s unclear whether the court will stick to its traditional timetable.

O’Connor often is the court’s pivotal vote in close decisions. If the other justices are divided 4 to 4, the court might choose to hear the case again once her successor is confirmed. President Bush’s nominee, Harriet Miers, could be confirmed as early as next month.

MO/PH END BARNETT/KOSSEFF

(Jim Barnett and Jeff Kosseff are Washington-based writers for The Oregonian of Portland, Ore.)