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From: <ConsideringCryonics@yahoogroups.com>
To: <ConsideringCryonics@yahoogroups.com>
Sent: Friday, May 28, 2004 8:28 AM
Subject: Digest Number 174



There is 1 message in this issue.

Topics in this digest:

1. Oregon's assisted-suicide law upheld
From: "Aschwin de Wolf" <amwdewolf@...>


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Message: 1
Date: Thu, 27 May 2004 13:21:42 -0400
From: "Aschwin de Wolf" <amwdewolf@...>
Subject: Oregon's assisted-suicide law upheld

Judges write that John Ashcroft overstepped bounds

http://news.statesmanjournal.com/article.cfm?i=80929


BETH CASPER
Statesman Journal
May 27, 2004

In a long-awaited decision, the 9th U.S. Circuit Court of Appeals on
Wednesday upheld Oregon's landmark physician-assisted-suicide law.
By a 2-1 margin, a federal court panel in San Francisco ruled that U.S.
Attorney General John Ashcroft's order to punish physicians who prescribe
drugs to terminally ill patients is "unlawful and unenforceable."

The 58-page ruling means that doctors in Oregon can continue to prescribe
lethal medication to terminally ill patients under the state law and not be
prosecuted. Oregon is the only state that allows doctors to assist in
hastening the deaths of patients.

Opponents of the law decried the ruling and said it means people won't find
the compassionate care they need from physicians. Proponents said the ruling
helps in securing states' rights and separating medical from political
issues.

"We are in a wonderful position because this is a such a strong opinion,"
said Eli Stutsman, a Portland lawyer representing the physicians and
pharmacists who support Oregon's law. "And the decision was based on the
merits of the case. So we are not lucky winners. . The attorney general has
to make some tough decisions because he has lost twice now."

Dr. Gregory Hamilton of Physicians for Compassionate Care, which opposes the
law, said that Oregon wrongly is being exempted from a federal law that
affects every other state.

"The 9th Circuit got the states' rights issue exactly backwards," he said.
"This isn't a case of the federal government intruding into state business.
This is one state that exempts itself from a law that applies to the other
49 states.

"This is a terrible ruling for residents of Oregon. It doesn't protect them
from being frightened into getting overdoses."

Ashcroft had declared that Oregon's Death with Dignity Act violated the
Controlled Substances Act of 1970 because it serves no "legitimate medical
purpose." He said that physicians who continue to prescribe controlled
substances under this law were subject to suspension or revocation of their
licenses.

The case is a classic states' rights battle, proponents of the law said.

Oregon maintained that it had the power to declare for itself what types of
medical procedures are allowed. Medical issues traditionally have been
determined by states, Stutsman said.

The three-judge panel of the Ninth Circuit agreed.

Judges wrote that Ashcroft's directive:


a.. Lacks clear congressional authority, and the attorney general may not
exercise control over an area of law traditionally reserved for state
authority.

a.. Violates the plain language of the federal Controlled Substances Act,
which expressly limits federal authority under the act to drug abuse and
prevention, not medical practices.

a.. Oversteps the bounds of the attorney general. Congress empowered the
Secretary of Health and Human Services, not the attorney general, to make
decisions regarding the practice of medicine.
The judges made it clear that they were not taking sides for or against
physician-assisted suicide.

"We express no opinion on whether the practice is inconsistent with the
public interest or constitutes illegitimate medical care," the majority
wrote. "This case is simply about who gets to decide. All parties agree that
the question before us is whether Congress authorized the Attorney General
to determine that physician assisted suicide violates the CSA (Controlled
Substances Act)."

Judges backing the ruling were Richard C. Tallman and Donald P. Lay.

One judge, J. Clifford Wallace, dissented and said that the court should
defer to Ashcroft's interpretation of the Controlled Substances Act in the
absence of a clear congressional policy.

"Certainly, Congress is free to enact legislation limiting or counteracting
the Ashcroft directive's effects," Wallace wrote.

Gov. Ted Kulongoski on Wednesday hailed the ruling and criticized Ashcroft
for challenging assisted suicide. And he said that states should serve as
laboratories for experimentation.

"I said at the time that Attorney General Ashcroft was wrong," Kulongoski
said. "His political stance was wrong, his legal strategy was wrong, and now
the court has said he was wrong."

The decision, however, is unlikely to change laws in other states. Congress
failed to pass measures banning assisted suicide in 1998 and 2000, but the
states have been unreceptive to the idea.

Hawaii lawmakers shelved a proposal in March. And in Vermont, the only other
known state to recently grapple with it, lawmakers balked last week.

Even in Oregon, people haven't rushed to get prescriptions for lethal
medications.

Since 1998, at least 171 people in Oregon have used the law to end their
lives and 42 people used the law last year, state records show.

Residents whose family members used the law celebrated the appeals court
ruling.

Nora Miller, 54, of Clackamas was relieved by the news.

Her husband, Rick, used the Death with Dignity Act at the age of 53 in
November 1999. It wasn't planned or talked about until he learned he had
lung cancer.

"We had planned to live to 100 and die together," Miller said. "And he had
wanted to start a native plant area."

It was six months from his diagnosis to death. Miller said he was in pain,
was having trouble swallowing and was showing signs of a brain tumor.

Miller said it was important to her husband to be able to say goodbye to her
and die around family, not hospice care workers.

"No one can tell me that I had no compassion and didn't properly care for my
dying husband," she said. "I let him go mere weeks before his illness would
have killed him - not because he suffered from treatable depression, but
because as a strong and dignified adult, he needed to die on his own terms -
upright and smiling instead of vegetative and unconscious."

Miller's sister, a Florida resident, also died of lung cancer.

Miller was present during her death, and the contrast is stark, she said.

"She wasted away," Miller said. "It was a painful death. . She had trouble
walking and talking. Fortunately, she slipped into a coma about 12 hours
before she died."

Florence Tauber of Lake Oswego, whose husband also used the law, said that
she is elated with the ruling but cautious because she said Ashcroft won't
let the ruling stand.

Groups that oppose the assisted-suicide law are hoping that's the case.

"It is a tragedy that the 9th Circuit failed to recognize the proven dangers
of Oregon's assisted-suicide law," said Gayle Atteberry, executive director
of Oregon Right to Life. "We encourage Attorney General Ashcroft to pursue
this case to the U.S. Supreme Court."

Justice Department spokesman Charles Miller said that the government was
reviewing the court's decision and was not prepared to comment about whether
it would ask the 9th Circuit to reconsider or appeal to the Supreme Court.

Garrett Epps, a law professor at the University of Oregon and supporter of
the state's unique law, said that it is unlikely that Ashcroft will appeal
until after the November election.

"So it is a big win for the state of Oregon," he said.

Kevin Neely, spokesman for Oregon Attorney General Hardy Myers, said
Ashcroft may not appeal to the Supreme Court this year because the court
calendar already has been set.

Dr. Peter Rasmussen, a Salem medical oncologist and plaintiff in the case
against Ashcroft, said that physicians have been worried about prescribing
lethal medications to terminally ill patients or even prescribing pain
medication for fear of Ashcroft's directive.

Rasmussen said that the decision helps ease those fears, but until the
Supreme Court rules, physicians can't rest easy.

"I expect an appeal to the Supreme Court and that will, of course, be a
long, drawn-out process," Rasmussen said. "I hope that does happen because
this is an important fundamental questions of individual liberties."

Assisted suicide in Oregon

Characteristics of patients who have used Oregon's assisted-suicide law in
its six years of existence:

Characteristics 2003 2002 2001 Total


Number of patients 42 38 21 171



Demographics



Age - median years 73 years old 69 years old 68 years old 70 years old



Race - white 41 (98%) 37 (97%) 20 (95%) 166 (97%)



Sex - male 19 (45%) 27 (71%) 8 (38%) 90 (53%)



Marital status



Married 15 (36%) 20 (53%) 8 (38%) 75 (44%)



Widowed 12 (29%) 7 (18%) 5 (24%) 41 (24%)



Divorced 10 (24%) 9 (24%) 7 (33%) 42 (25%)



Never married 5 (12%) 2 (5%) 1 (5%) 13 (8%)



Education



Less than high school graduate 2 (5%) 4 (10%) 3 (14%) 16 (9%)



High school grad/some college 20 (48%) 15 (40%) 10 (48%) 86 (51%)



College graduate 20 (48%) 10 (26%) 7 (33%) 69 (40%)



Residence



Portland metro 19 (45%) 15 (40%) 7 (33%) 67 (39%)



Other Oregon 23 (54%) 23 (60%) 14 (67%) 104 (60%)



Underlying disease



Cancer 35 (83%) 32 (84%) 18 (86%) 135 (79%)



Other diseases 7 (17%) 6 (16%) 3 (14%) 36 (21%)








Numbers have been rounded up and might not total 100.

Source: Oregon Health Division



Statesman Journal reporter Peter Wong and the Associated Press contributed
to this report. Beth Casper can be reached at (503) 589-6994.



[Non-text portions of this message have been removed]




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