Roberts court appears divided on suicide law

WASHINGTON — Setting the stage for the Supreme Court's first blockbuster ruling of the new term, the justices appeared deeply split yesterday in arguments over the future of Oregon's unique assisted-suicide law.

At issue is whether Oregon or the federal government has the power to decide whether doctors may prescribe lethal doses of medication.

The justices had tough questions for Oregon Attorney General Robert Atkinson, who asserted that the Controlled Substances Act didn't give the U.S. attorney general the power to punish doctors who participate in Oregon's program. The regulation of medical practice, he said, has been left to states for 200 years.

But the justices also leaned hard on U.S. Solicitor General Paul Clement, who insisted that 90 years of federal drug regulation should trump any state's law that uses federally licensed drugs to aid suicides.

New Chief Justice John Roberts, presiding over his first major argument at the court, seemed skeptical of at least part of Oregon's argument. He and the other justices were particularly stunned when the state's lawyer acknowledged that his argument would hypothetically prevent the administration from halting any state law that authorized morphine use "to make people feel better."

"Doesn't that undermine the uniformity of federal law and make it almost impossible to enforce?" Roberts asked.

Arguing for the Bush administration, Clement maintained Congress gave federal authorities the power to regulate how drugs are used.

Roberts also questioned that premise.

"What's the closest analogue to this?" he asked Clement, pressing for an example of where a U.S. attorney general had overruled the states and their doctors on how legal drugs are used.

Clement could not cite a specific example. Roberts' question highlighted that former U.S. Attorney General John Ashcroft was claiming a new power when he decreed in 2001 that doctors who prescribe a legal drug for the purpose of ending a life were in violation of federal drug-control laws.

Justice Sandra Day O'Connor, who plans to retire as soon as her successor is confirmed, took part in the arguments. But her role could produce more uncertainty than anything else. If the justices don't decide the case before her replacement is seated, neither she nor the replacement could cast a vote. That could result in a 4-4 tie and likely send the case on a path toward re-argument.

The justices said in 1997 that there's no constitutional right to end one's own life, but they left open the door for states to experiment with different approaches to end-of-life questions. Roberts, then a private attorney, praised that decision at the time, saying it protected the rights of citizens to decide through local governments how best to deal with the issue.

Oregon's voters twice have approved the Death with Dignity Act, which permits people with an incurable disease to seek lethal medication from a doctor. Two other physicians must confirm the patient probably will die within six months and is capable of making an independent decision.

The Oregon law took effect in 1997; since then, 208 people have ended their lives by taking medication.

Congress twice tried to pre-empt the Oregon law, in 1998 and 1999, but neither effort passed. The Clinton administration concluded that there was no federal interest in challenging the law.

But in 2001, the Bush administration reversed course and said the Oregon initiative conflicted with federal drug statutes. The Justice Department threatened participating doctors with prosecution or the loss of their medical licenses.

A federal judge in Portland and the U.S. court of appeals in San Francisco blocked Ashcroft's decree from taking effect. They said the federal drug-control laws were intended to halt drug traffickers, not to regulate doctors and the practice of medicine.

For the high court, the case is a matter of deciding whether the Oregon initiative is primarily about drugs or about doctors and medical standards.

The government's case focuses on the use of drugs in the Oregon law, with Clement telling the justices that if Oregon is permitted to relax drug standards, it would create "holes" in federal drug policy and invite other states to follow suit. Several justices seemed sympathetic to that argument during the hearings, including Antonin Scalia and Anthony Kennedy.

But justices David Souter, O'Connor, Ruth Bader Ginsburg and Stephen Breyer were skeptical.

The federal law was intended to "stop drug pushing and drug abuse," Souter said. It is unclear whether lawmakers meant to tightly regulate how doctors prescribe drugs in medical situations.

But Congress wanted to stop drug pushing and drug abuse for their "debilitation of people's lives, their degradation of people's lives," Clement said. Prescribing lethal doses does that, he said.

Oregon asserts that even if the case is about drugs, Congress intended to leave the question of how to govern the use of drugs in medical practice to states when it adopted the Controlled Substances Act in 1970.

"They left the question of legitimate use to states," Atkinson said. "What they had in mind was the traditional regulation of medicine by states."

Atkinson said even if the federal law could reach into regulation of medical practice, it didn't allow the U.S. attorney general to decide which medical practices violated the law. Congress would have to make that decision, he said.

The court's decision is expected by July.