THE OREGON ASSISTED-SUICIDE LAW AND AN OVERREACHING OF FEDERAL POWER

"Throughout the Nation, Americans are engaged in an earnest and profound
debate about the morality, legality and practicality of physician assisted
suicide. Our holding permits this debate to continue, as it should in a
democratic society."

That's how Chief Justice William Rehnquist left it two years ago when the
Supreme Court said states have the authority to ban physician-assisted
suicides. The court that day refused to create a "right to die."

But if the states have the power to ban physician-assisted suicides, do
they not also have the authority to allow them? Oregon voters, after years
of careful and scrutinized debate, approved just such an initiative in
1994. By state law, doctors may kill competent, terminally ill patients, at
a patient's request.

LAST WEEK, HOWEVER, the U.S. House of Representatives passed a bill that
would make it a crime for doctors to prescribe a lethal dose of drugs to
their dying patients. Although the bill does not expressly overturn the
Oregon law, it would make it all but impossible for doctors in Oregon to
follow the state's Death With Dignity statute: A conviction could send a
physician to prison for two decades.

We understand and wholeheartedly support most efforts to provide a
dignified and pain-free ending for suffering patients, but we profoundly
disagree with a policy that would have doctors pushing patients into the
next life. Nevertheless, the people of Oregon have not abused the
democratic process in twice affirming physician-assisted suicide with their
votes.

At first blush, this pre-emption of state power may seem a fine thing. As
the bill's sponsor, Rep. Henry Hyde, R- Illinois, said, "Doctors are
authorized by the Oregon law to put down the stethoscope and pick up the
poison pill and assist in the execution of their patients."

But as Justice Department officials, who also have no stomach for the
Oregon law, have noted, the bill would "interfere with state policymaking
in a particularly heavy-handed way."

Indeed, regulation of medical practices is traditionally left to the
states, so this bill, the Pain Relief Promotion Act, amounts to a direct
assault on Oregon's inherent power.

Supporters of the bill, mostly Republicans but also a good number of
Democrats, say the Constitution's commerce clause gives them the authority
to enact the law. That's the method Congress has used for years to extend
its power over the states.

In short, the bill would amend the Controlled Substances Act of 1970, which
gives the Drug Enforcement Administration the authority to monitor and
track powerful barbiturates and other drugs. Doctors from Oregon (and any
other state that would pass a physician-assisted suicide law) would be
prevented from prescribing these federally controlled drugs, even though
the state would allow it.

"It is the committee's view that while the states are the first line of
defense against the misuse of prescription drugs, the federal government
should enforce its own standard as to what constitutes misuses when a state
cannot or will not do so," wrote the judiciary committee in its report to
the House.

But the Controlled Substances Act was intended by Congress to prevent
trafficking in these drugs, not to keep states from determining the
appropriate medical practices that involve those drugs.

Congressional Republicans have slyly cast this bill as a physician
liberation bill. We have all heard the occasional complaints of families
who think that doctors are not doing enough for their relatives - patients
in pain and in need of comfort. But physicians understandably worry that in
their prescribing and adjusting of medications, patients could die and
doctors would be held responsible.

Some states have addressed this concern in crafting laws banning
physician-assisted suicides, but others have failed to expressly permit
pain management that may unintentionally hasten death. That's what this
federal bill would do by making the doctor's intent in treating the patient
the relevant inquiry should questions arise about the patient's death.

Supporters of the law say this will free the physicians to see to it their
dying patients suffer as little as possible. We don't see, however, where a
doctor would be any less intimidated by the threat of the federal
government second-guessing his or her decisions.

"Doctors are going to be caught looking over their shoulders, having each
and every one of their decisions subject to second-guessing and potentially
subject to life in prison if the intent appears in the judgment of others
to be wrong," Rep. Earl Blumenauer, an Oregon Democrat, declared.

THERE IS LITTLE evidence that other states will jump on Oregon's bandwagon,
although California will, for the second time, consider a similar law next
year, as will Maine. Currently 44 states, including Florida, prohibit
physician-assisted suicide either through statutes or common law. States
continue to turn down this "extension" of medical care at the ballot box.

Physician-assisted suicide, like abortion, is a sanctity-of-life issue,
profoundly deserving of debate and determination by the people. The House
bill shows again how difficult it is to precisely legislate moral conduct.

If this bill becomes law, we anticipate challenges to it on constitutional
grounds. The Supreme Court has lately taken a dim view of federal laws that
pre-empt those of the states. Whether the federal government can get away
with this one by explicitly ignoring, rather than officially pre-empting,
Oregon's law is questionable.

This conflict also raises the most serious questions about the devolution
of power in this country. Oregon's law may be a tragic error, but it is not
the federal government's role to overrule it. The Senate should be wary of
this latest example of the expansion of federal power.