WASHINGTON – Charlene Andrews can't take another loss.
She's already lost her hair,her eyebrows,her eyelashes and her health to lung cancer and chemotherapy. A loss at the Supreme Court might kill her – or worse,keep her alive.
“With cancer,we know when it's the end,” said Andrews,a 68-year-old Oregonian at a news conference Tuesday,one day before the court will hear arguments about physician-assisted suicide.
Andrews is comforted by a 1997 state law that allows patients to order lethal prescriptions from physicians. “This has taken the fear out of dying for me. I can concentrate on living,” she said.
But on Nov. 6,2001,a new problem began to metastasize for Andrews,when then-Attorney General John Ashcroft issued a directive to nullify Oregon's Death with Dignity Act,stating that “prescribing,dispensing,or administering federally controlled substances to assist suicide violates the Controlled Substances Act.”
Oregon's attorney general filed a suit one day later,and both U.S. district and appellate courts have upheld the law in Ashcroft v. Oregon. But on Wednesday,the fate of Oregon's terminally ill will be given to the nation's highest court in what is now Gonzales v. Oregon,after Ashcroft's replacement,Alberto Gonzales.
The name has changed,but the arguments remain the same. Oregon's lawyer says physician-assisted death is a “legitimate purpose” for federally controlled substances,but the federal government says it's not.
“Nothing in the Controlled Substances Act has given the attorney general the authority to issue such a directive,” said Mary Williams,Oregon's solicitor general. “We don't think that's what Congress intended to do.”
The federal government will argue,according to the government's legal brief,that,although medicine is traditionally state-regulated,“the Death with Dignity Act and its approach to assisted suicide does not resemble any traditional regulation of ‘medicine.'” A spokesman for the Justice Department declined to comment before the oral argument.
Both sides intend to use Gonzales v. Raich,a case decided in June,to their advantage. In that case,the Supreme Court decided that doctors could not prescribe marijuana because it is a Schedule I drug – the most restricted kind under the Controlled Substances Act. The drugs that have been prescribed in Oregon are Schedule II drugs,which are available with prescriptions for approved purposes.
“Unlike Raich,we are not using banned drugs,” said Eli Stutsman,an attorney representing Oregon,but the federal government will insist that the precedent works to its advantage.
But the main issue in the case,Stutsman said,is not assisted suicide. “It's not a right-to-die case,” he said. Should the court rule in favor of Gonzales,it would give the federal government much more authority over states and “turn back advances in federalism,” he said.
It would cause a “radical transformation of state and federal governments,” Williams said,“turn the Controlled Substances Act into a controlled medical-practices act and the attorney general into a national medical board.”
With success at two levels,precedent and what they think is a good argument,those on Oregon's side are confident.
Stutsman said that if the court were to rule in favor of Gonzales,it would be “inconsistent with everything the court has done for two decades.”
The court will rule on the case in a few months.