Court Strikes Down Ashcroft Directive on Assisted Suicide

MAY 31, 2004 VOLUME 11, NUMBER 48

In 1994 and again in 1997, Oregon voters approved the first law permitting physician-assisted suicide in the U.S. In each of the six years since the law was implemented, about 30 terminally ill Oregon residents have used the “Death With Dignity” Act to end their lives with the help of physicians. It is not easy to comply with the Act’s terms; it is available only to long-time Oregon residents who are terminally ill, and it requires psychological assessment of the patient and consistent requests over time. It also requires a sympathetic and cooperative physician to prescribe medication and a pharmacist to dispense the lethal dosage of drugs.

U.S. Attorney General John Ashcroft has made clear his disapproval of the Oregon law. In November, 2001, Mr. Ashcroft issued a Directive to officers of the federal Drug Enforcement Administration. The Directive insists that physician-assisted suicide serves no legitimate medical purpose, and instructs the DEA to prosecute any physician who prescribes a lethal dose of narcotics or other “controlled substances.” It also directs prosecution of any pharmacist filling such a prescription, and effectively threatens both physicians and pharmacists with loss of professional licenses if they utilize the Oregon law.

A physician, a pharmacist, several terminally ill patients, and the State of Oregon brought suit in Oregon Federal Court to have Mr. Ashcroft’s Directive rendered invalid. They argued that Mr. Ashcroft had no business interfering in the doctor/patient relationship, and no authority to impose his views of proper medical care on state governments.

Judge Robert E. Jones of the Federal District Court in Oregon agreed, and permanently enjoined the Attorney General from enforcing his own Directive. Mr. Ashcroft appealed that ruling.

The Ninth Circuit Court of Appeals affirmed Judge Jones’ ruling. The appellate court noted that the Controlled Substances Act, on which Mr. Ashcroft had relied for his Directive, was intended to combat drug abuse, not to regulate medical care. That job should be left to the states, according to the ruling, and until Congress acts the Attorney General is powerless to enforce his Directive. Besides, as the appellate court pointed out, Mr. Ashcroft is a lawyer, not a physician, and he and his office are poorly qualified to make medical decisions. Any role the administration is to have in medical decisions should be voiced by the Department of Health and Human Services, not the Attorney General.

One other problem with the Directive, said the two judges in the majority, is that it does exactly what Mr. Ashcroft intended it to do. Because of the fear of prosecution or loss of license, the Directive would have a chilling effect on physicians, pharmacists and other health care providers, as they might not dare risk their livelihood and freedom to provide patient care in a manner approved by Oregon voters. State of Oregon v. Ashcroft, May 26, 2004.

One of the three appellate judges hearing the case dissented, and would have approved the Directive. It is likely that the Supreme Court will be asked to resolve the dispute over Mr. Aschroft’s Directive.

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