OREGON SUES U.S. TO PROTECT ASSISTED SUICIDE

State attorneys filed suit Wednesday against the federal government to
protect Oregon's doctor-assisted suicide law, while the state's leading
medical ethicist worried that even the threat of federal intervention could
lead to less aggressive pain treatment for dying patients.

Oregon Attorney General Hardy Myers is challenging a directive U.S.
Attorney General John Ashcroft issued Tuesday intended to keep Oregon
doctors from prescribing lethal doses of prescription drugs to hasten the
death of terminally ill patients.

Myers' attorneys will go before a federal judge today in Portland seeking a
temporary restraining order and preliminary injunction against Ashcroft's
decision while the suit is pending.

In motions filed Wednesday, Myers argued that Ashcroft's order, based on
the Controlled Substances Act, exceeds his authority and infringes upon
Oregon's sovereignty guaranteed by the 10th Amendment.

Myers contended that Congress' intent in passing the Controlled Substances
Act was to control illicit drug traffic, not to regulate medical practices
authorized by state law, performed by licensed physicians and unrelated to
drug trafficking.

And while Ashcroft's order said doctor-assisted suicide is not a
"legitimate medical purpose" under federal drug law, the federal government
has historically left that determination up to states, Oregon's suit stated.

The U.S. Supreme Court, Myers said, "has been loath to interpret a federal
statute as pre-empting a state statute, especially when the federal law
would intrude into an area traditionally reserved to the states."

Myers cited a 1925 case, Linder vs. United States, in which the high court
recognized that "direct control of medical practice in the states is beyond
the power of the federal government."

Ashcroft on Tuesday moved to overturn Oregon's unique suicide law by
directing federal drug agents to investigate any doctors who help patients
kill themselves with federally controlled drugs. Doctors could lose their
federal licenses to prescribe such drugs, which would effectively put them
out of work.

Ashcroft, in a letter sent Tuesday to Dr. Hugh Stelson, president of the
Oregon Medical Association, said the Drug Enforcement Agency would not try
to keep doctors from aggressively treating pain with drugs.

Oregon doctors "will have no reason to fear that prescription of controlled
substances to control pain will lead to increased scrutiny by the DEA, even
when high doses of painkilling drugs are necessary and even when the
dosages needed to control pain may increase the risk of death," Ashcroft wrote.

Dr. Glenn Gordon, a retired Eugene surgeon who supports Oregon's law, said
he didn't think Ashcroft's directive would change doctors' behavior until
the courts settle the issue. "I don't think the DEA is going to come
knocking on the door until it's determined in the courts," he said.

But Dr. Susan Tolle, director of the Center for Ethics in Health Care at
Oregon Health & Science University in Portland, said she fears that an
unintended consequence of Ashcroft's decision will be that doctors will
become more cautious and prescribe less pain medication to dying patients.

"The result will be more suffering for those who are actively dying," she said.

When people are dying, it's common for their blood pressure to fall and
their breathing to slow, and those are also side effects of morphine in
large quantities, she said. So doctors who prescribe large doses of
morphine to ease pain in dying patients may fear being second-guessed, she
said.

She recommends that doctors write an additional sentence in their patient
progress notes to describe not just the patient's condition but also that
their intent in prescribing pain medication is to relieve pain or suffering.

"Nobody is guessing your intention then," she said. "To fight back and
ensure adequate comfort, you need to write a clear note about what you're
doing and keep treating pain aggressively."

To enforce his order, Ashcroft said drug agents would "take appropriate
measures" to obtain copies of the report doctors file with Oregon Health
Services, formerly the state Health Division, when they assist a suicide.

The two-page form, called the Attending Physician's Compliance Form,
documents the patient's name, medical condition, and the medication
prescribed, as well as the patient's requests for help with suicide and the
opinion of a second doctor.

The state considers the forms confidential, and would not willingly turn
them over to federal agents, said Dr. Katrina Hedberg, deputy state
epidemiologist.

"We don't release those and haven't released them in the past," she said.
"Certainly we would go to some lengths to maintain the confidentiality of
these records. Ashcroft writing us a note won't do it, but obviously if we
have a court order we'll comply."

Michael Mosman, U.S. attorney for Oregon, said the question will likely be
resolved in court the first time federal agents seek access to a
physician's statement.

"It's not at all unusual in the health-care setting for documents that are
otherwise confidential to have to be released upon a court order if there's
a legitimate government function," Mosman said.

George Annas, a professor of health law at the Boston University School of
Public Health, predicted "the doctors are probably going to lose this one."

While the patient information is confidential, the doctor's name is
probably not, he said. So a judge, for instance, could order the state to
redact the name of the patient before releasing the document to federal
authorities, he said.

It's possible that doctors who feel strongly about helping dying patients
commit suicide may simply not file the form with the state, he said.

Voters approved Oregon's assisted suicide law in 1994, then affirmed their
support for the law in 1997. From 1998 to 2000, 70 terminally ill people
have killed themselves with the help of a doctor; numbers for 2001 haven't
been released.

Under the law, Oregonians deemed terminally ill - by two doctors - and not
suffering from a psychological disorder may seek a lethal prescription.