STATES' RIGHTS UNDER FIRE

Attorney General's Actions Show Shift In White House Policy

Attorney General John Ashcroft is an ardent advocate of states' rights, as
he demonstrated in 1998 when he praised a pro-Confederacy magazine for
defending "Southern patriots" like Jefferson Davis.

His boss, President Bush, told campaign audiences last year that the
federal government was too big and too active outside its proper sphere --
and even suggested that states should decide whether to legalize medical
marijuana.

But Ashcroft's actions toward doctors in Oregon and toward medical
marijuana suppliers and physicians in California have led some analysts to
question the administration's devotion to curbing the powers of the federal
government.

- -- On Tuesday, Ashcroft ordered federal drug agents to crack down on
doctors who prescribe lethal medication to terminally ill adults under
Oregon's assisted-suicide law, twice approved by the state's voters. He
reversed a 1998 decision by Attorney General Janet Reno, who said the
practice of medicine was regulated by states, not the federal government.
On Thursday, a federal judge granted state officials' request for a
restraining order blocking Ashcroft's edict at least until Nov. 20.

- -- The week before, federal agents under Ashcroft's authority raided and
shut down a Los Angeles medical marijuana clinic that was operating, with
local law enforcement approval, under the terms of an initiative approved
by California voters in 1996. Similar actions had been taken against
Northern California clinics by President Bill Clinton's administration.

- -- Ashcroft's Justice Department has asked a federal appeals court to
overrule a San Francisco federal judge and let the government revoke the
drug prescription licenses of California doctors who recommend marijuana to
their patients, pursuing a case that began under Clinton.

"I think they care about states' rights when it serves their political ends
. . . but I think that's been true throughout American history," said
University of Southern California law professor Erwin Chemerinsky, a
liberal and frequent critic of the administration.

On the conservative side, Kent Scheidegger, legal director of the Criminal
Justice Legal Foundation in Sacramento, said Ashcroft's edict against
assisted suicide was harder to defend than the federal attack on state
medical marijuana laws.

"The issue of whether a drug (like marijuana) is safe and effective for
specific purposes was federalized long ago," Scheidegger said, referring to
the U.S. Food and Drug Administration's approval authority. "The
right-to-die question is a question of basic criminal law, of what is
homicide. . . . What people can do to each other in noncommercial contexts
has traditionally been a state matter."

"Congress has let the states control the practice of medicine," said Marsha
Cohen, a professor at the University of California's Hastings College of
the Law in San Francisco and a former president of the state Board of
Pharmacy. "If Congress wished to take over this issue, it could pass a law."

The U.S. Supreme Court also appeared to endorse state prerogatives in 1997
when it allowed states to prosecute doctors who aid in suicides, but said
states are free to decide whether such assistance is a crime.

Ashcroft noted, however, that the federal government regulates prescription
drugs that are classified as "controlled substances" -- those that can be
abused -- including the barbiturates used in Oregon to help consenting
patients die.

Oregon Only State With This Law

Oregon is the only state with an assisted-suicide law. While states decide
whether a doctor is fit to practice, federal authorities can largely
curtail a medical practice by revoking the doctor's license to prescribe
federally controlled substances.

Administering drugs to assist in a suicide is not a "legitimate medical
purpose," Ashcroft declared Tuesday in a letter to the Drug Enforcement
Administration, part of the Justice Department.

The DEA took the same position three years ago and proposed to act against
Oregon physicians, but the agency was overruled by Reno. She said she found
no evidence that Congress, in restricting or banning certain drugs,
"intended to displace the states as the primary regulators of the medical
profession, or to override a state's determination as to what constitutes
legitimate medical practice."

On the other hand, Ashcroft argued Tuesday, if the federal government can
outlaw marijuana as a medicine in states that allow it -- a position backed
by the Supreme Court in a California case in May -- why can't it decide how
federally regulated medicines are used?

"You would think he would be sympathetic to a narrower reach of a federal
law," said Jesse Choper, a constitutional law professor at the University
of California at Berkeley.

But if Ashcroft sincerely believes federal law forbids the use of medicines
to assist in a suicide, his job is to enforce the law, Choper said.

Confirmation Grilling

"That was one of the things they grilled him about when he testified at his
confirmation hearing, whether he would enforce laws with which he
disagreed," Choper said.

The grilling, however, focused on Ashcroft's ability to act contrary to his
political views -- particularly his opposition to abortion -- and not his
zeal as a drug warrior. A lawyer for Oakland's now-closed medical marijuana
dispensary was neither surprised nor impressed by Ashcroft's latest action.

"Turning federal agents loose on (Oregon) physicians is consistent with the
approach they're taking to medical marijuana," said Santa Clara University
law professor Gerald Uelmen, who argued the marijuana case in the Supreme
Court. "We talk about states being laboratories, but when push comes to
shove, (federal officials) don't give much credence to that."

E-mail Bob Egelko at begelko@sfchronicle.com.