National Right to Life Committee and Oregon RTL File Brief In Support of Ashcroft Decision on Assisted Suicide

By Thomas J. Marzen

The National Right to Life Committee and Oregon Right to Life (ORTL) have filed an important 32-page "friend-of-the-court" brief in support of Attorney General John Ashcroft's November 6 decision that the Controlled Substances Act (CSA) does not permit the use of federally controlled drugs to assist in suicides.

The NRLC/ORTL brief is in response to a November 20, 2001, decision by Federal District Judge Robert E. Jones to extend an initial temporary restraining order against enforcement of the Ashcroft ruling until after all the parties to the litigation are able to fully brief the judge on the issues involved.

In opposing a suit brought by the pro-euthanasia Compassion in Dying, the state of Oregon, and others, the NRLC/ORTL brief argues that the federal government's unqualified interest in the protection of human life supports Ashcroft's position. It also argues that to interpret the CSA to permit the use of federally controlled drugs to assist in the suicide of "terminally ill" persons (as Oregon state law permits) would violate the federal Constitution's equal protection provision.

The Ashcroft decision, in effect, reverses the position taken by Clinton Administration Attorney General Janet Reno. In 1998 Reno overruled the director of Drug Enforcement Administration's 1997 finding that there is no exception to the CSA's ban on using federally controlled drugs to kill patients even if state law explicitly permits such a practice.

The controversy arose when Oregon's law legalizing physician- assisted suicide for the terminally ill took effect. The Oregon law permits doctors to issue a lethal "prescription for medication" to such patients. All of the more than 70 deaths that have occurred under the Oregon law have been accomplished through the use of barbiturates, which are federally controlled drugs.

Under the Ashcroft decision, physicians who prescribe and pharmacists who dispense federally controlled drugs for assisted suicide in Oregon could lose their licenses to prescribe any federally controlled drugs.

NRLC General Counsel James Bopp, Jr., underscored the importance of Attorney General Ashcroft's ruling: "The Ashcroft decision marks the most significant anti-euthanasia event since the United States Supreme Court held that there is no federal constitutional right to assisted suicide," he said. "It is perhaps the most effective anti-euthanasia action ever taken."

The suit against Ashcroft charges that his ruling effectively nullifies Oregon's law permitting physician-assisted suicide for the terminally ill. Oregon is the only state to have legalized physician-assisted suicide.

Oregon was joined in Oregon v. Ashcroft by a number of persons seeking assisted suicide, a physician, a pharmacist, and " Compassion in Dying," an assisted suicide advocacy organization. They persuaded Judge Jones to temporarily enjoin the effect of the ruling pending full review of the legal issues.

The NRLC/ORTL brief argues that Ashcroft's decision was fully justified because the federal government can choose to protect all human life through its laws even if the state of Oregon has chosen not to do so. "Just because Oregon allows its doctors to prescribe lethal drug overdoses to patients doesn't mean that the federal government has to agree that this is a legitimate medical use of the drugs," explained Bopp. "The Oregon tail doesn't wag the federal dog. The U.S. government can protect all human lives even if Oregon turns its back on some of them."

To ultimately succeed in the case, Oregon and the individuals who brought suit must show that they would be injured if the Ashcroft decision goes into effect. The friend-of-the-court brief argues that this is not possible.

"The only harm anyone can claim is that some people will continue to live unless they can get drugs to kill themselves," said Bopp. "But just being alive is something that the law has never recognized as an injury." The Ashcroft decision actively encourages the use of federally controlled drugs to relieve pain and suffering.

Under the schedule established by Judge Jones, briefing would be complete in March 2002, and the judge has stated he would rule within 30 days thereafter. Appeals to the United States Court of Appeals for the Ninth Circuit and, ultimately, the U.S. Supreme Court will then ensue.

The National Right to Life Committee/Oregon Right to Life amicus brief may be obtained at the National and Oregon Right to Life web sites: www.nrlc.org and www.ortl.org.