ORAL ARGUMENTS HEARD ON WHETHER U.S. MUST FACILITATE SUICIDE WITH FEDERALLY CONTROLLED DRUGS

By Burke J. Balch, J.D.,
Director, Robert Powell Center for Medical Ethics

On May 7, 2003, a three-judge panel of the U.S. Ninth Circuit Court of Appeals heard oral argument on an appeal from Oregon Federal District Court Judge Robert Jones' April 17, 2002, opinion. Judge Jones overturned Attorney General John Ashcroft's ruling that federally controlled drugs may not be used to assist suicide in Oregon, the only state whose laws specifically authorize it.

Although it is dangerous to make predictions based on judges' questions at oral argument, those from Judge Clifford Wallace seemed generally sympathetic to the Ashcroft position, while those from Judge Richard Tallman seemed generally sympathetic to Oregon's pro-suicide position, according to a May 8 story in the Portland Oregonian.

Of greatest concern to pro-life and disability rights opponents of assisted suicide, however, were questions from Judge Donald Lay. According to the Oregonian story, Lay's questions focused on procedural issues, suggesting that there were technical flaws in the suit brought by Oregon and other plaintiffs against the Ashcroft ruling.

If the appellate court rules for or against the Ashcroft directive on the merits, the case will undoubtedly be appealed to the U.S. Supreme Court, which in that case might resolve the issue as early as 2004. Because the Ashcroft ruling has been prevented from taking effect by court orders during the litigation, a swift decision by the Supreme Court offers the best prospect for its implementation. This would bring protection to the lives of those in Oregon who might become victims of assisted suicide facilitated by lethal prescriptions of federally controlled drugs.

If, on the other hand, the lawsuit is thrown out on procedural grounds, a new lawsuit without the technical flaws would be filed at the district court level. Since that lawsuit would then have to be again tried at the lower-court level, and then once more appealed to Ninth Circuit, a final ruling by the Supreme Court - - and implementation of the Ashcroft directive - - could be delayed for years.

The use of narcotics and other dangerous drugs is generally prohibited by federal law except when a doctor prescribes them for a "legitimate medical purpose." On November 5, 1997, then-Drug Enforcement Administrator Thomas Constantine announced that since assisting suicide is not "a legitimate medical purpose[,] . . . prescribing a controlled substance with the intent of assisting a suicide" violates federal law.

However, on June 5, 1998, Clinton Administration Attorney General Janet Reno partially overruled Constantine's decision. She agreed that "adverse action" might be warranted "where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physician fails to comply with state procedures in doing so." However, she said federally controlled drugs could be prescribed to kill patients when legal under state law. Oregon is the only state whose law specifically authorizes lethal prescriptions.

On November 6, 2001, Attorney General Ashcroft issued a decision reversing Reno and reinstating the prior uniform federal policy against the prescription of federally controlled drugs to kill patients. However, this policy never took effect, because of court orders by District Judge Jones.

NRLC Executive Director David N. O'Steen, Ph.D., commented, "The American people do not want their federal government to facilitate euthanasia. We strongly support 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."