COURT HEARS SUICIDE-LAW CASE

Appellate Judges Grill Federal Lawyer Over Strategy In Oregon

Portland, Ore. -- A federal appeals court seemed skeptical Wednesday about
Attorney General John Ashcroft's attempt to use federal narcotics laws to
punish doctors who prescribe lethal drugs to dying patients under Oregon's
physician- assisted suicide law.

Ashcroft's November 2001 directive would effectively repeal the voter-
approved Oregon measure, the only one of its kind in the nation, by
revoking the federal prescription licenses of doctors who helped patients
end their lives. His action could sidetrack the assisted-suicide movement,
which is strongly opposed by conservative religious groups that are among
the Bush administration's closest allies.

A federal judge ruled against Ashcroft in April 2002, saying states, not
the federal government, regulate the practice of medicine. The ruling left
Oregon doctors free to prescribe lethal doses of barbiturates that have
been used by 129 terminally ill patients from 1998 through 2002.

A Justice Department lawyer argued Wednesday that Ashcroft was acting
within his authority to restrict the use of federally regulated drugs, but
ran into tough questioning from a panel of the Ninth U.S. Circuit Court of
Appeals.

"I can see your argument if we're talking about drug dealing," said Judge
Richard Tallman. He said the federal laws on which Ashcroft relies were
intended to curb narcotics trafficking, not medical practice.

"We're talking about the regulation of federally controlled substances,"
countered Justice Department attorney Gregory Katsas. He said Ashcroft's
position was supported by a 2,000-year tradition that doctors should be
healers who try to save their patients' lives.

But when Katsas said the court should defer to Ashcroft's interpretation of
the federal drug law, Judge Donald Lay pointed out that Ashcroft's predecessor,

Janet Reno, had read the law the opposite way in 1998. The result, he said,
was her decision against intervention in Oregon by the Clinton
administration. Courts normally give more deference to government agencies
when their positions have been consistent over long periods.

As the hearing was taking place, about 15 supporters of the law
demonstrated outside the courthouse, holding signs that read, "Respect the
Will of the People" and "Back Off John."

The Oregon law was passed by the voters in 1994, was tied up in court for
three years and was reaffirmed by the voters in 1997. It allows a doctor to
prescribe life-ending drugs to a terminally ill patient if death is
forecast within six months, and if the patient is found mentally competent
and renews the request twice.

Similar laws have been voted down repeatedly in other states -- including
California, where a ballot measure failed in 1992. However, a court victory
for Oregon would likely prompt renewed efforts across the nation, as the
population ages and medical doctrines change.

Although mainstream medical groups generally oppose doctor-assisted
suicide, they have either stayed out of the case or -- like the California
Medical Association -- supported Oregon, on the grounds that Ashcroft's
directive could discourage doctors from giving terminally ill patients
needed pain medication.

Ashcroft invoked a section of the 1970 Controlled Substances Act that
allows doctors to prescribe federally regulated narcotics, including the
barbiturates prescribed in lethal doses in Oregon, only as part of a
"legitimate medical practice." Aiding in a suicide cannot be such a
practice, the attorney general declared.

But lawyers on Oregon's side contended the federal law leaves the
definition of medical practice to the states, which license doctors.

When Katsas, the Justice Department lawyer, argued that federal regulation
should be uniform nationwide, Tallman cited the U.S. Supreme Court's 1997
ruling on assisted suicide. That ruling upheld a ban on the practice in
Washington state but "talked about the states being laboratories for
experimentation," Tallman said.

The legal issues are closely related to the federal government's campaign
against medical marijuana in California.

The courts have upheld the federal government's authority to prosecute
medical marijuana suppliers, on the grounds that federal law determines
which drugs are legal. But attempts by both Reno and Ashcroft to punish
California doctors who recommended medical marijuana have been rebuffed by
the federal appeals court as an interference with the doctor-patient
relationship.