Posts Tagged ‘Oregon Death With Dignity Act’

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.

Oregon’s “Death With Dignity” Act Stricken By Federal

AUGUST 28, 1995 VOLUME 3, NUMBER 9

Last November, Oregon voters approved a ballot initiative called the “Oregon Death With Dignity Act.” This first-of-its-kind legislation created a right to physician-assisted suicide in narrowly proscribed circumstances. Predictably, opponents filed suit claiming the Act violates the U.S. Constitution.

Earlier this month a U.S. District Court Judge in Oregon sided with opponents of the Death With Dignity Act. In a nine-page opinion, Judge Hogan ruled that the Act violates the Fourteenth Amendment by denying equal protection of the laws to terminally ill patients who may also be depressed.

Oregon’s law provided a mechanism for securing physician assistance with suicide only when the patient:

  • is terminally ill,
  • initiates the discussion about suicide,
  • waits at least fifteen days, and
  • is examined by another physician on referral by the attending physician.

Judge Hogan’s opinion striking down the Oregon law makes the point that a clinically depressed patient who attempts suicide normally will come under the purview of the state’s civil commitment laws. Under those laws (essentially similar to Arizona’s), the patient would be evaluated by two independent and qualified physicians. If the patient’s suicidal actions appeared to be the result of a mental disorder (including but not limited to depression), the state would intervene and protect the patient from harm, even though the patient may not choose to be so protected.

Under the Death With Dignity Act, however, the determination whether the patient’s wish to die is the product of mental disorder is made by the attending physician and another chosen by the attending physician. This, says Judge Hogan, means that the terminally ill and suicidal patient is not adequately protected from the possibility that he or she might be mentally ill. This is true, according to the Court, because the examination is undertaken by:

  1. One physician and his or her choice of consulting doctor,
  2. Neither of whom is required to be a psychiatrist or trained in dealing with mental illness.

Thus, according to the Federal Court opinion, Oregon’s Death With Dignity Act fails to provide adequate protection for those who are both terminally ill and mentally ill. Consequently, the Act must fail.

The result of this decision is a legal anomaly. In Oregon, where voters adopted a Death With Dignity Act, physician-assisted suicide is not available because of Judge Hogan’s ruling. In Washington state, however, where voters rejected a nearly-identical Death With Dignity Act, another Federal Court ruling has found that physician-assisted suicide must be made available to the same patients.

Stay tuned for further legal developments.

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