A federal judge in Oregon ruled on April 17 that U.S. Attorney General John Ashcroft illegally trampled on a right that the Constitution gives to states when he said he would begin prosecutions against physicians in Oregon who help dying patients end their own lives.

Oregonians have twice voted for a state referendum that allows terminally ill patients to request and receive medications that will be lethal—once in 1994 and again in 1997. The law, known as the Death With Dignity Act, puts strict controls on the ability of patients and their physicians to hasten death in this manner. Despite predictions that the law would provoke a torrent of requests for help in dying, only 70 people have utilized this statute in the last four years.

Ashcroft’s threat to the Oregon statute came in the form of a November 6, 2001, directive in which he stated that the federal government would charge physicians in that state who assisted patients in committing suicide with violating the Controlled Substances Act, a federal law that regulates certain prescription drugs and other substances with high potential for abuse or addiction. Nothing in that law prohibits physicians from, for example, using morphine in a dose that is likely to be lethal after a patient and his or her physician agrees under state law to do so.

Judge Robert Jones of the U.S. District Court for the District of Oregon ruled that Ashcroft was incorrectly interpreting Congress’s intent in passing the Controlled Substances Act. Jones said in his ruling that Congress did not intend to be the arbiter of what constitutes "legitimate medical purpose" in individual states, as Ashcroft maintained. Instead, he pointed out, "Congress’s overarching concern in enacting the [Controlled Substances Act] was the problem of drug abuse and illegal trafficking in drugs."

For a cabinet member to insist on applying that act to Oregon’s assisted-suicide law would leave the definition of medically legitimate treatments to the political whims of various presidential administrations, Jones stressed. Ashcroft’s threatened action is illegal, he noted, because the Controlled Substances Act permits any state-licensed physician to register with the Drug Enforcement Administration as long as he prescribes the cited medications in accord with state laws governing medical practices and licensure.

Former Attorney General Janet Reno had reviewed similar issues after a request from Rep. Henry Hyde (R-Ill.) and Sen. Orin Hatch (R-Utah) to revoke the medical licenses of any physician who prescribes or delivers a controlled substance to a patient whom the physician knows will use it to commit suicide. In a June 1998 decision, Reno rejected their argument that these physicians violate the Controlled Substances Act. Pursuing legal action against physicians who act in compliance with Oregon’s Death With Dignity Act, Reno stated, "would be beyond the purpose" of the Controlled Substances Act.

The judge’s ruling came in response to a suit filed by the state of Oregon and several individual plaintiffs seeking an injunction to prohibit the U.S. Department of Justice and Ashcroft, as well as the U.S. Drug Enforcement Administration and its director, Asa Hutchinson, from interfering with Oregon’s assisted-suicide statute by prosecuting participating physicians.

Judge Jones, in granting the plaintiffs’ injunction request, issued an unusually strong rebuke to federal officials, particularly Ashcroft. In no federal law, Jones said, is there any indication that Congress intended "to grant blanket authority to the Attorney General or the DEA to define, as a matter of federal policy, what constitutes the legitimate practice of medicine."

As a result, "the fact remains that the Ashcroft directive exceeds the authority" that federal law delegates to the two federal agencies.

In addition, Jones pointed out, no provision of the Controlled Substances Act "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."

While there has been "tremendous disagreement among highly respected medical practitioners as to whether assisted suicide or hastened death is a legitimate medical practice, opponents have been heard and, absent a specific prohibitive federal statute, the Oregon voters have made the legal. . .decision that such a practice is legitimate in this sovereign state," Jones concluded.

The judge’s ruling in State of Oregon and Peter Rasmussen, et al., v. John Ashcroft, Asa Hutchinson, et al. is posted on the Web at www.ohd.hr.state.or.us/chs/pas/ors.htm. ▪

[Civil No. 01-1647-JO, U.S. District Court for the District of Oregon]