ASHCROFT'S MEDDLING

When Right To Die Is Not A Federal Case

When a federal appeals court ruled on Oregon's assisted suicide law last
week, the general impression might have been that a federal court was
legalizing, if not endorsing, assisted suicide. That wasn't the case. "To be
perfectly clear," the court said, "we take no position on the merits or
morality of physician-assisted suicide. We express no opinion on whether the
practice is inconsistent with the public interest or constitutes
illegitimate medical care. This case is simply about who gets to decide."

Attorney General John Ashcroft thought he did. Correcting him, the court
said he did not. Oregon voters do.

In 1994, Oregon passed a ballot initiative legalizing assisted suicide.
State legislators then drafted the nation's only law making assisted suicide
permissible in limited and strictly supervised circumstances. Terminally ill
adults who are likely to die within six months may request a lethal
injection from a physician. The physician prescribes the drug but may not
administer it and is shielded from liability. Since 1997, about 30 people a
year have used the law to end their lives.

The Bush administration is opposed to assisted suicide, but Ashcroft more
actively so. In 1997, when he was a Missouri senator, he asked then-Attorney
General Janet Reno to invalidate the Oregon law. Reno refused. When he took
over the post in 2001, his directive making doctors and pharmacists liable
for aiding in suicides was among his first actions.

Officially, however, Ashcroft, like the administration he represents, is
also an advocate of states' rights. The Oregon law posed a challenge. As a
matter of states' rights, he had to stay out of it. As a matter of ideology,
he couldn't possibly. Ashcroft looked for a way of interfering and found it
in the Controlled Substance Act of 1970 -- a federal law devised to help
fight the so-called war on drugs President Nixon launched the year before.
The act forbids doctors from prescribing controlled substances without a
federal registration and requires prescriptions to be issued only "for a
legitimate medical purpose."

But the act doesn't define medicine. It is aimed at battling illegal drugs
and at keeping doctors from abetting individuals' addictions. Nor does the
act give the attorney general the authority to define medicine or
arbitrarily single out medical practices for disapproval. Ashcroft's
directive forbidding assisted suicide in Oregon essentially takes it on
itself to define for the state what legitimate and illegitimate medicine is.
The court was right to invalidate the directive.

Yet, the court left the door open for Congress to rewrite the act and give
the attorney general that authority. So far, Congress has shown no interest
in doing so for good reason: Oregon's law was no legislative whim but a
voter-approved measure regarding one of the most difficult decisions an
individual can make. It strikes the right balance between freedom of choice
and government oversight. Federal intervention would politicize what is
essentially a local, private decision.

Under Ashcroft, however, the Justice Department has stopped making
distinctions between public interest and private choice just as it has
stopped making distinctions between states' rights and federal authority.
It's not clear when federal authority is invoked to overrule local rights,
but ideological concerns have been a fairly reliable guide. Oregon's
assisted suicide law aside, Ashcroft has used his authority to override
local laws permitting the medical use of marijuana or to override local
federal prosecutors' opposition to seeking the death penalty. Such finicky
application of the Justice Department's power is, at best, an abuse of the
department's authority that the president has encouraged and Congress has
permitted. One court case going in the opposite direction hasn't ended the
trend, but only highlighted a serious problem of federal overreach.