ASSISTED SUICIDE AND DEMOCRACY:
Why An Oregon Federal Judge Was Right To Overturn Attorney General Ashcroft's Assisted Suicide Decision

By J. PAUL OETKEN
Tuesday, Apr. 23, 2002

Last week, Oregon Federal District Judge Robert E. Jones reaffirmed the validity of Oregon's assisted suicide law. He did so by formally overturning Attorney General John Ashcroft's prior decision that the Oregon law conflicted with federal drug laws.

While many have couched this dispute in terms of federalism, it is really about democracy--as Judge Jones correctly recognized.

Ashcroft's Decision: An Effective Federal Ban on Physician-Assisted Suicide

In November, Ashcroft effectively adopted a federal ban on physician-assisted suicide, by ruling that the federal drug law prohibits that practice. Legally, the decision is an interpretation of the Controlled Substances Act, which is intended to prevent drug trafficking.

The Act says that regulated drugs may be prescribed by a physician only "in the course of professional practice." This phrase, in turn, has been interpreted by courts and agencies to mean that drugs may be prescribed only with a "legitimate medical purpose."

Dispensing drugs outside the course of professional practice--without a "legitimate medical purpose"--subjects a physician to revocation of her DEA license and a possible felony conviction as well. The obvious target of the Act is a physician's knowing prescription of a regulated drug to a drug dealer or drug addict who lacks a medical reason for using the drug, and is motivated instead by profit or addiction.

Nevertheless, Ashcroft found in the Act's general language a prohibition of assisted suicide, even where a state has legalized and carefully regulated the practice. His interpretation is questionable in light of the Act's purposes, which have nothing to do with assisted suicide.

It is also particularly questionable in light of the fact that federal law has traditionally left the regulation of medical practice to the states. Indeed, the drug law specifies that it is not intended to override state law unless there is a direct conflict between the two.

The state of Oregon has legalized the practice of assisted suicide in narrow circumstances: where a terminally ill, mentally competent adult has been examined and interviewed by two independent physicians. Thus, the state has determined that assisting in a suicide, in strictly defined circumstances, is part of the "course of professional practice," and can be legitimate as a medical practice.

Disagreeing that the practice can ever be legitimate, Ashcroft read the federal drug law as overriding the law passed by Oregon's voters. Now, however, Judge Jones has overruled him, preventing enforcement of Ashcroft's interpretation (at least until Ashcroft appeals, as is expected).

Judge Jones, who was appointed by the senior President Bush, rejected Ashcroft's reading of the federal drug law as unfounded.

Specifically, he concluded that there is nothing in the federal law that "demonstrates or even suggests that Congress intended to delegate to the Attorney General or the DEA the authority to decide, as a matter of national policy, a question of such magnitude as whether physician-assisted suicide constitutes a legitimate medical purpose or practice." Instead, Judge Jones reasoned, that decision--as is traditional with medical practice issues--has been left to the individual states.

The dispute between the U.S. Attorney General and the Oregon Attorney General has been widely viewed as a dispute about federalism--about the power of a state versus the federal government. But in fact, it not federalism that is at the heart of this debate.

It is true that Ashcroft's November decision reflects a robust view of federal power--which is ironic, given his usual solicitousness for states' rights, and no doubt explained by a commitment to pro-life political values. But as Judge Jones recognized, what the case is really about is democracy and political accountability--about the power of our elected Congress versus that of unelected executive branch officials.

Why the Executive-Judicial Conflict Here Concerns Democracy, Not Federalism

It is Congress that has the power to make law, and Congress simply had not authorized the reading of the drug law that was adopted by Ashcroft. Rather, Ashcroft distorted beyond recognition a law designed to target illegal drug trafficking, attempting to transform it into an anti-physician-assisted suicide law.

But as Judge Jones observed, "the fact that opposition to assisted suicide may be justified, morally, ethically, religiously or otherwise, does not permit a federal statute to be manipulated from its true meaning to satisfy even a worthy goal." Debate over assisted suicide belongs in legislatures, state or federal. It should not be silenced by executive fiat.

Indeed, opponents of assisted suicide, led by many members of the pro-life community, have been lobbying Congress for three years to enact a law that would prohibit assisted suicide. So far, they have been unable to rally the necessary political support for their bill.

Ashcroft attempted to hand them the win they have not been able to achieve. He tried to short-circuit the process of changing the law, along with the country's opportunity to debate and resolve the issue democratically, by interpreting an unrelated law purportedly to resolve the issue. But this fight should stay where it belongs, in the legislatures.

Another consequence of Ashcroft's misuse of the federal drug law would have been to create a more heavy-handed enforcement tool than the democratic process would have produced--and as a result, potentially to put many patients, both terminal and non-terminal, in jeopardy.

Recent bills introduced in Congress have included the caveat that physicians' efforts at pain management, even palliative care measures that hasten death, would not be subject to criminal prosecution or license revocation. Ashcroft's novel reading of the law had no such safe harbor.

As a result, the law as interpreted by Ashcroft would not only have prevented physicians in Oregon from assisting in suicides, but could potentially have had a chilling effect on physicians nationwide who seek to relieve their patients' pain. Since untreated pain itself has been shown, in some instances, to impede recovery, Ashcroft's decision would not only have caused patients needless suffering, but actually could have harmed their ability to get well.

Laws passed by Congress are always subject to interpretation. But Ashcroft's decision regarding assisted suicide, albeit phrased in terms of legality, lacked support in the law written by Congress and amounted to lawmaking by the Justice Department.

The federal district court has correctly resolved this dispute by assigning the thorny problem of whether to allow, and how to limit, physician-assisted suicide to its proper forum: the "laboratories" of the states. Their varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.


J. Paul Oetken served as Associate Counsel to the President in the Clinton Administration and as an attorney-advisor at the Department of Justice Office of Legal Counsel. He is an attorney at Debevoise & Plimpton in New York.

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