THE OREGON DEATH WITH DIGNITY CASE

                    (Transcript of PBS Newshour Segment, March 22, 2005)

LEE HOCHBERG: When Caleb Heppner was diagnosed with terminal lung and bone cancer, he
thought immediately of the horrid end to his father's life. He'd died of leukemia.

CALEB HEPPNER: Nobody wants to go through an excruciating last few hours like my father
did. I'm thinking about those last hours, when instead of being around my family, being able to
talk to them and then pass on very quietly, we're mopping up blood and they're trying to manage
this horrible, horrible disease process that is just tortuous.

LEE HOCHBERG: With aggressive treatment, he's outlived his six- to nine-month prognosis.
But he's preparing to use Oregon's right-to-die law if he needs to. The nation's only such law
allows patients who two doctors say have only six months to live the right to ingest a physician-
prescribed lethal medication.

CALEB HEPPNER: Having the law available in Oregon and that that might be an option
available to me, gave me a huge sense of release if worse comes to worse there was always that
other option. And knowing that, I essentially put those issues about the last few hours of my life,
days of my life aside, and went on living.

LEE HOCHBERG: That's meant peaceful days gardening, reading and writing. But he's uneasy
this week about a Bush administration effort to overturn the law in the US Supreme Court.

CALEB HEPPNER: If it's taken away, then I know that there is the possibility that I'm going to
die a very excruciating death of bone cancer.

The Oregon law

LEE HOCHBERG: The high court will rule on whether the Bush administration can legally
prohibit Oregon doctors from providing aid in dying when Oregon law expressly allows the
practice. Oregon voters passed their right-to-die measure by ballot initiative in 1994, then again
by large majority in 1997.

But in 2001, Attorney General John Ashcroft directed the US Drug Enforcement Administration
to revoke the licenses of Oregon doctors who prescribed drugs to help patients die. He said such
drugs can be used only for "legitimate medical purposes."

"I hereby determine that assisting suicide is not a legitimate medical purpose," Ashcroft wrote in
his directive.

JOHN ASHCROFT: I certainly believe that people who are in pain should be helped and assisted
in every way possible, that the drugs should be used to mitigate their pain but I believe the law of

the United States of America which requires that drugs not be used for -- except for legitimate
health purposes, that those laws need to be enforced, and that's my responsibility.

LEE HOCHBERG: Oregon sued the administration, claiming it's the state's responsibility, not
the U.S. attorney general's, to set state medical standards. A US District Court agreed, as did the
9th US Circuit Court of Appeals.

"The Attorney General's unilateral attempt to regulate medical practices …far exceeds the scope
of his authority," the appeals court wrote in its decision.

 DR. R. PETER RASMUSSEN: I think morality does enter into this whole arena, but it's the
patient's morality, not the federal government's morality. First of all, the attorney general is not a
physician; he's not an expert on what is appropriate and inappropriate medical practice; it's very
clear that what he wanted to do was to just stop Oregon's death with dignity law.

LEE HOCHBERG: But opponents in Oregon agree with Ashcroft that it's bad medicine. Oregon
psychiatrist Greg Hamilton helped write an amicus brief to the court.

DR. GREG HAMILTON: You can call it aid-in-dying but when you give someone an overdose
with the intention of their taking it to die, you're participating in them killing themselves. You
can use all the euphemisms you want, but that's what's happening. If one of my patients is going
to die tomorrow and I give them an overdose today, then I've killed them today.

LEE HOCHBERG: Hundreds of Oregonians at the end of their lives are watching the case
closely. A ruling in Oregon's favor could pave the way for other states, like California, Vermont
and Wisconsin, to pass their own right-to-die legislation.

The U.S. government's argument

MARGARET WARNER: Jan, this case, the shorthand and we've used it and the tape just used it,
this is a right-to-die case. Now this isn't really about a constitutional right to die, is it?

JAN CRAWFORD GREENBURG: No it's not. In fact, the court took up that very issue in 1997
and it specifically refused to read the Constitution so broadly to say that the Constitution
protected a broad right to die. And in that case in an opinion by Justice O'Connor, the court
emphasized that these end-of-life issues were best handled by the states, which were laboratories
to kind of look at and experiment and think about how best to handle these critical end-of-life
issues. And, in fact the government's lawyer today, those were some of the first questions that he
got particularly by Justice Ginsberg about how he can swear today's case with that one in 1997.

MARGARET WARNER: Well take us inside the courtroom now. The solicitor general went
first. What was his basic argument on behalf of the attorney general?

JAN CRAWFORD GREENBURG: The solicitor general said that the attorney general had
properly interpreted federal law to prohibit this kind of drug prescriptions; that it was not a

legitimate medical use and it was not in the public interest. He said the federal Controlled
Substances Act was a paternalistic law that it didn't allow people to make choices.

MARGARET WARNER: And that's where that phrase "legitimate medical purpose" comes from,
right? It gives the executive branch, what, the right to yank any doctor's license who prescribed
drugs that aren't for legitimate medical purposes?

JAN CRAWFORD GREENBURG: Right. The regulations attached to the law say the drugs
must be prescribed for that legitimate medical purpose. And it gives the federal government the
right to withhold these prescription privileges from doctors if they violate it.

MARGARET WARNER: All right. So tell us how the justices responded. Start with the new
chief justice, John Roberts.

JAN CRAWFORD GREENBURG: Well, he was very active at argument today. And, of course
we've all been wondering how he would be from the bench. He was replacing a chief justice who
was not as active as some of the ones but would also be relatively aggressive at times. Chief
Justice Roberts asked lawyers on both sides of this issue very aggressive questions; he saved
most of his aggressive questions for the lawyer for the state of Oregon who was defending
Oregon's law. The lawyer for the federal government who said it could block these efforts in
Oregon ran into the most trouble from Justices Souter and O'Connor and Ginsberg who were
really pressing him on why the federal government could step in here and interfere with these
state efforts in Oregon.

For example, Justice Ginsberg referred back to the 1997 right-to-die case and said, look, the
government then argued there was no constitutional right to die. It said this is something for the
states to decide. How do you square that position with your argument today that the federal
government can step in and prohibit these kind of prescriptions, these lethal doses of medication?

And the solicitor general said we're not saying this is to ban all cases of assisted-suicide. There
are other ways that people can commit suicide with assistance of a doctor but that doctors simply
can't prescribe these lethal drugs.

And then, of course, Justice Ginsberg immediately said but we're told that this is a much gentler
way to die.

Oregon's case

MARGARET WARNER: And then of course it was the turn for Oregon's lawyer. What did he
have to say?

JAN CRAWFORD GREENBURG: Well he said that Congress when it passed this Controlled
Substances Act in 1970 did not intend for the federal government to regulate the kind of drugs in
this manner, that it never intended to preempt the states from regulating the practice of medicine

and that states for hundreds of years have shown that they can responsibly regulate the practice
of medicine.

And that was an argument some of the justices had already made. Justice O'Connor, for example,
asked, "Don't states regulate medicine?" So he came in with some of the justices seeming to be
already on his side.

MARGARET WARNER: And then you said here's where Chief Justice Roberts was really
assertive in his questions.

JAN CRAWFORD GREENBURG: That's right. He seemed very troubled by the fact that this
could undermine the federal scheme and the uniformity of federal law

Justice Scalia, also very aggressive in questioning the lawyer for the state of Oregon and saying,
you know, Congress certainly never intended or imagined that states would authorize the use of
drugs in this kind of situation.

The new makeup of the Supreme Court

MARGARET WARNER: So you've been watching not this exact court but most of this court for
a long time. Are you willing to venture any prediction based on the questioning?

JAN CRAWFORD GREENBURG: Margaret, the court was very difficult to read today. And it
showed what one new justice -- the impact one new justice can have. It's more than just one vote.
The dynamics of the argument even felt really different. Now this is a court that's been together
for 11 years, as of last June -- the longest in any period in history, nine justices have been
together. So it became relatively easy in some cases to predict how they would go.

But with the addition of Chief Justice Roberts, it was harder to read, so I wouldn't venture a
guess today.

MARGARET WARNER: All right. Jan, thanks a lot.


RAY SUAREZ: Oregon physician Peter Rasmussen was outraged five years ago when then-
Attorney General John Ashcroft issued a directive barring statewide distribution of drugs used
for assisted suicides. The federal government argued such drugs can be used only for "legitimate
medical purposes," and that didn't include suicide.

DR. PETER RASMUSSEN: He's not a physician. He's not an expert on what is appropriate and
inappropriate medical practice. It's very clear that what he wanted to do was to just stop Oregon's
death with dignity law.

 RAY SUAREZ: But a majority of Oregon voters supported the law, approving it twice. It gives
a patient, who two doctors agree has only six months to live, the right to ingest a physician-
prescribed lethal medication.

More than 200 people have taken advantage of the law since it took effect in 1997. John Ashcroft
tried to stop the practice using federal drug laws, so the state of Oregon sued the Bush
administration, claiming only the state, not the U.S. Attorney General, has the authority to set
medical standards in Oregon. Two lower federal courts agreed, and today, so did the U.S.
Supreme Court. By a 6-3 decision, it ruled that Attorney General Ashcroft's directive was
unlawful, unenforceable and that he had overstepped his authority.

Interpreting the Controlled Substances Act

RAY SUAREZ: With us now is Marcia Coyle, Washington, D.C. Bureau Chief and Supreme
Court correspondent for the National Law Journal. And, Marcia, the ruling today, was this a case
dealing primarily with a state’s right to oversee the practice of medicine in Oregon.

MARCIA COYLE: It was partly a states' rights case, Justice Kennedy, who wrote the majority
opinion, did say that the regulation of the medical profession is a traditional state power and so
federal preemption did not apply. But he also indicated that the issue before the court in this case
really had to do with interpreting a federal statute, the Controlled Substances Act, to see whether
it gave the U.S. attorney general the authority to prohibit physicians from prescribing regulated
drugs for assisted suicide even when its state law allows them to do it.

The court basically rejected all of the Federal government's arguments and followed the state of
Oregon's arguments very closely. Justice Kennedy said that Congress gave the U.S. attorney
general only limited powers under the federal Controlled Substances Act. This federal law is
designed to combat illegal drug dealing and drug trafficking as it's conventionally understood.
The medical profession is regulated here to ensure that physicians don't use their prescription
writing to deal in drugs. The U.S. attorney general can seek to suspend or revoke a doctor’s
privilege of writing prescriptions if the doctor is illegally prescribing drugs.

But nowhere within the act was a broad grant of power to make assisted suicide criminal. The
courts said that if you accept the federal government's argument the power to criminalize would
be unrestrained. The attorney general could criminalize physicians' conduct whenever the
attorney general felt that the conduct was illegitimate.

The court majority also felt that the government's claim to authority here really clashed or
conflicted with the design and the objective of the Controlled Substances Act. There is no
connection between that and assisted suicide, according to the court, so the attorney general

overstepped his authority in banning the use of prescription drugs for assisted suicide in this

RAY SUAREZ: The final vote was 6-3. Who was in that six-member majority?

MARCIA COYLE: Everybody except Chief Justice John Roberts and Justices Antonin Scalia
and Clarence Thomas. Justices Scalia and Thomas wrote dissents. Justice Scalia said that he the
opinion of the majority was driven more by the belief that assisted suicide as a subject was no
business of the federal government. But he thought the Congress clearly gave the attorney
general authority here. He said the overwhelming opinion of the medical community today is
that assisted suicide is not a legitimate medical practice so the attorney general can act in the
public interest.

RAY SUAREZ: Marcia, thanks a lot.


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