Washington – Newly installed Chief Justice John Roberts today sharply questioned a lawyer arguing for preservation of Oregon’s physician-assisted suicide law, noting the federal government’s tough regulation of addictive drugs.
The 50-year-old Roberts, hearing his first major oral argument since succeeding William H. Rehnquist at the helm of the court, seemed skeptical of the Oregon law, and the outcome of this case was as unclear after the argument as before.
At the outset, Roberts laid a barrage of questions on Oregon Senior Assistant Attorney General Robert Atkinson before he could finish his first sentence.
“It’s a tough case,” noted Justice Anthony Kennedy, a moderate, who with Roberts and others got immersed in one of the most vexing cases of the court’s term. Justices pondered whether the federal government has the power to block doctors from helping terminally ill patients end their lives.
As they did so, demonstrators – some carrying signs saying “My Life, My Death, My Decision” – carried their pleas to the courthouse steps.
Inside, retiring Justice Sandra Day O’Connor seemed ready to back the law allowing dying patients to obtain lethal doses of medication from their doctors.
Although O’Connor could provide the fifth vote in Oregon’s favor, she likely will be off the court before the case is decided.
A 4-4 tie would be decided by a new justice.
Voters in Oregon have twice endorsed doctor-assisted suicide, but the Bush administration has aggressively challenged the state law, the only one of its kind in the nation.
O’Connor immediately challenged Solicitor General Paul Clement, asking if federal drug laws also prevented doctors from participating in the execution of murderers.
Kennedy said he found it “odd” that the U.S. attorney general determined physician-assisted suicide to be an abuse of drug laws, when the state of Oregon strictly limited how the drugs could be administered and in what cases.
“I don’t think it’s odd,” Clement replied, noting that federal laws regulating drug use have been in place for more than 90 years.
The case was heard by justices touched personally by illness.
Three justices – O’Connor, Ruth Bader Ginsburg and John Paul Stevens – have had cancer, and a fourth – Stephen Breyer – has a spouse who counsels young cancer patients who are dying.
Their longtime colleague, Rehnquist, who once wrote about the “earnest and profound debate” over doctor-assisted suicide, died a month ago after battling untreatable cancer for nearly a year.
In 1997 the court found that the terminally ill have no constitutional right to doctor-assisted suicide. O’Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.
The appeal is a turf battle of sorts, not a constitutional showdown. Former Attorney General John Ashcroft, a favorite among the president’s base of religious conservatives, decided in 2001 to pursue doctors who help people die.
Hastening someone’s death is an improper use of medication and violates federal drug laws, Ashcroft reasoned, an opposite conclusion than the one reached by Janet Reno, the Clinton administration attorney general.
Oregon filed a lawsuit to defend its law, which took effect in 1997 and has been used by 208 people.
The Supreme Court will decide whether the federal government can trump the state.
“It could be close,” said Neil Siegel, a law professor at Duke University and former Supreme Court clerk. “It is a wrenching issue. It’s one of the most difficult decisions any family needs to make. There’s a lot of discomfort with having the government at any level get involved.” Under Rehnquist’s leadership the court had sought to embolden states to set their own rules.
The administration lost at the 9th U.S. Circuit Court of Appeals in San Francisco, which said that Ashcroft’s “unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide.” In Oregon, the first assisted-suicide law won narrow approval, just a 51 percent majority, in 1994. An effort to repeal it in 1997 was rejected by 60 percent of voters.
“There is a real human need” for control over one’s life, said cancer patient Charlene Andrews of Salem, Ore. “We are terminal and we know when we have a few weeks left. We know when we’re unconscious. We know when we’re at the end.” The case before the Supreme Court is Gonzales v. Oregon, 04-623.
