Federal Judge Overturns Ashcroft Assisted Suicide Ruling; Appeal Expected

Commentary by Burke J. Balch, J.D.

In a 30-page opinion that often read more like a political speech than a legal opinion, Federal District Court Judge Robert Jones criticized Attorney General John Ashcroft for what Judge Jones claimed was Ashcroft's attempt to "stifle an ongoing, earnest and profound debate in the various states concerning physician-assisted suicide."

Jones struck down Ashcroft's November 6, 2001, determination that federally controlled drugs may not be used to assist suicide in states, like Oregon, that have legalized it as a matter of state law.

More significant than the specific arguments in Judge Jones's opinion may be when he issued his decision--just five months after the suit was filed. The most salient point about Jones's ruling is that it is expected to be appealed to the Ninth Circuit Court of Appeals. Once the appeals court makes its decision, the losing party will take it to the United States Supreme Court.

Because vulnerable patients will continue to die in Oregon for as long as the litigation continues, anything that speeds up the process is good news.

In the four years Oregon's "Death with Dignity" law has been in effect, 91 people have been "helped" by physicians to end their own lives.

Following Judge Jones's April 17 decision, Robert McCallum, an assistant attorney general, told reporters, "Terminally ill patients are among the most vulnerable members of our society." McCallum added, "Medical studies make clear that these individuals often suffer from undiagnosed depression and inadequately treated pain. A just and caring society should do its best to assist in coping with the problems that afflict the terminally ill. It should not abandon or assist in killing them."

Judge Jones's decision is full of critical remarks about Attorney General Ashcroft and praise for the "excellent analysis" of euthanasia proponents. He invokes his status as a former Oregon state legislator, and seems to want to set himself up as defender of the state of Oregon against the federal Goliath.

For example, Judge Jones makes much of statements praising the " democratic process" made by Supreme Court justices in two 1997 cases. In Washington v. Glucksberg and Vacco v. Quill the High Court upheld state statutes that prevent assisting suicide against pro-euthanasia claims that the U.S. Constitution protects assisting suicide, just like abortion.

By bringing these cases euthanasia proponents were trying to persuade the Supreme Court to impose a uniform policy allowing assisted suicide throughout the United States, regardless of the will of the people and legislatures in 50 different states. When they lost, they had to turn to the harder state-by-state battle.

Now that Attorney General Ashcroft and the Bush Administration are enforcing a uniform federal law that prevents prescribing drugs for anything that is not a "legitimate medical purpose"-- which excludes using those drugs to kill patients--these same euthanasia advocates are screaming, "State's rights!" The irony--if not hypocrisy--is stunning.

Following their line, Judge Jones charges Ashcroft with seeking " to stifle an ongoing 'earnest and profound debate' in the various states concerning physician-assisted suicide." He quotes Justice Sandra Day O'Connor's 1997 statement that "States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. ... In such circumstances, 'the ... challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of the States ... in the first instance.'"

It is hardly surprising that she would refer to "States" in an opinion dealing with whether state statutes against assisting suicide can stand. But the federal government is composed of elected officials responsible to the people; it is just as "democratic" as are state governments.

Nothing in the quotation from O'Connor can validly be taken to suggest that the democratically elected arm of the federal government is barred from acting against assisting suicide in areas of federal responsibility. What it does mean is that the judiciary should not stifle democratic decisions by imposing the "constitutional" straitjacket of a "right" to assist suicide.

When he finally got around to the actual legal issues, Judge Jones issued a surprisingly sweeping ruling. It might have been expected, perhaps, that he would claim that Attorney General Ashcroft was wrong to conclude that assisting suicide is not a " legitimate medical purpose" under the law that forbids prescribing federally controlled drugs for anything else.

Instead, Jones went much farther: he denied the right of the federal government, in applying a federal law, EVER to determine what is or is not a legitimate medical purpose. He said that must be left to the states.

The consequences affect national drug policy far beyond assisting suicide. If Jones's position were to be upheld, then heroin, cocaine, or marijuana (all federally controlled substances) would have to be permitted, as a matter of federal law, in any state that had legalized their "medicinal" use as a matter of state law. (A number of states have done so with regard to marijuana, and one, Arizona, has legalized the use of a large list of other controlled drugs.)

This would dramatically change the existing uniform enforcement of federal drug law. [Of course, as a single-issue organization, NRLC is not involved in the debate over such drug legalization within states, but the sweeping nature of Jones's opinion is noteworthy, and likely to make it controversial with many.]

What is the public's position? According to a nationwide ABC News/Belief.net poll conducted March 13-17, 2002, by 48% to 40% Americans disagree that "it should be legal ... for doctors to help terminally ill patients commit suicide by giving them a prescription for fatal drugs" (12% no opinion; 3% margin of error).

A Wirthlin Worldwide poll conducted July 6-9, 2001, found a larger percentage, 67% to 29%, opposes "use of ... federally controlled drugs for the purpose of assisted suicide and euthanasia" (4% don't know/refused; 3.08% margin of error).

The American people do not want their federal government to facilitate euthanasia, as Judge Jones's ruling requires. There is good reason to believe that the U.S. Supreme Court, on appeal, will ultimately uphold the position of Attorney General Ashcroft and the Bush Administration that federally controlled drugs should be used to cure and relieve pain, not to kill.

Burke J. Balch, J.D., is director, NRLC Department of Medical Ethics.