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Death wish

Courts | High court OKs suicidal prescriptions, provokes first Roberts dissent

Issue: "Five-man legacy," Jan. 28, 2006

Charlene Andrews, a 68-year-old cancer patient, has a reason to live: She wants to secure the right of the terminally ill to give up and die.

Ms. Andrews on Jan. 17 joined right-to-die advocates in hailing a Supreme Court decision that upholds Oregon's Death with Dignity Act-a twice voter-approved law that allows doctors to prescribe lethal doses of barbiturates to patients they believe will die within six months. More than 200 Oregon residents have used that provision to end their lives.

Former attorney general John Ashcroft sought to criminalize such physician-assisted suicide in 2001, declaring that participating doctors were violating the federal Controlled Substances Act (CSA). Mr. Ashcroft's successor, Alberto Gonzales, has maintained that position.

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But the high court ruled 6-3 that federal narcotics laws were meant solely to restrict addiction and recreational drug use and that Mr. Ashcroft had overstepped his authority. In his majority opinion issued Jan. 17, Justice Anthony Kennedy argued that it defied the ordinary use of terms "to read prescriptions for assisted suicide as constituting 'drug abuse.'"

Mr. Kennedy also paid lip service to states' rights, abandoning the federalist approach he and other liberal justices have favored in life-and-death issues like abortion. He quoted a 1998 letter from then-attorney general Janet Reno stating that the CSA did not authorize the federal Drug Enforcement Agency 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." Many states have long wished to classify abortion as illegitimate medical practice, only to encounter a federal judiciary roadblock.

In a scathing dissent, Justice Antonin Scalia wrote that "if the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death." Justice Clarence Thomas and Chief Justice John Roberts joined the minority opinion, the first dissent for Justice Roberts since his confirmation to the court last September.

Though disappointed with the outcome, pro-life activists are not without recourse. Congress could pass legislation to ban assisted suicide nationally. "The legal impact is very minor," said medical ethicist Wesley J. Smith. "The ruling did not, as some of the spin has it, rebuke the Bush administration. It did not create a broad-based support for assisted suicide or the constitutionality of assisted suicide."

Nevertheless, Ms. Andrews, one of four plaintiffs in the case, shared kisses with supporters and declared, "We won." She has battled her terminal breast cancer prognosis successfully since 2000.

The decision's impact could stretch beyond Oregon, buoying euthanasia bills up for consideration in California and Vermont. But the Physicians for Compassionate Care Educational Foundation (PCCEF) is more prepared for political battles in such states than it was in 1994 when the Oregon law first passed as a citizens' initiative. "There was gleeful celebration 11 years ago when the so-called Death with Dignity Act passed that this would just be the first of many domino states to fall," said PCCEF co-founder and physician William Toffler. "But we've educated other states that this is not the simple act that promoters would have you believe."

Congress seems largely convinced of euthanasia's ugly underbelly, having strongly supported the 1999 Pain Relief Promotion Act-legislation that undermined the rationale for assisted suicide by allowing the aggressive treatment of pain for the terminally ill. But Democratic Sen. Ron Wyden of Oregon spearheaded a filibuster against the measure. He has vowed to do so again, despite espousing personal moral objections to mercy killing.

That Congress would touch such a sticky issue in a midterm election year seems unlikely, but Mr. Smith predicted that any political groundswell right-to-die advocates are enjoying is likely to evaporate quickly: "This will put a little bit of wind in their sails, but it will not be a gale. It's not going to unleash demonstrations in the streets demanding the right to be killed by doctors."

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