Pubdate: Sun, 12 Jul 1998 Source: Oregonian, The Contact: http://www.oregonlive.com/ Author: Erin Hoover Barnett and Ashbel S. Green of The Oregonian staff ASSISTED-SUICIDE LAW FACES NEW CHALLENGES IN COURT, CONGRESS * Opponents Again Will Try To Persuade A Judge And A Subcommittee To Block The Oregon Statute Opponents of physician-assisted suicide will take their case to court and to Congress this week. On Monday, National Right to Life lawyers will renew their efforts to persuade a federal judge in Eugene to block the Oregon law, which allows terminally ill adults to obtain lethal doses of pills. The following day, a congressional subcommittee will begin hearings on a bill that would hit the law from a different angle -- in effect, putting a doctor's livelihood at stake for assisting in a suicide. Neither the court nor Congress is expected to immediately alter the law's status. U.S. District Judge Michael R. Hogan is not expected to make a ruling Monday, and Tuesday's congressional hearing is just the first step in what probably will be a protracted debate. But opponents and supporters of assisted suicide will watch for clues about how strategies for stopping the Oregon law might fare. And the dual hearings will showcase ongoing efforts by opponents, primarily the National Right to Life, the U.S. Catholic Conference and a largely Republican group of lawmakers. "There is a series of legal strategies, and the opponents will continue to have something in their back pocket," said Valerie Vollmar, a professor at Willamette University College of Law. "At this point, they show no signs whatsoever of slowing down or stopping." Approved by voters in 1994 and reaffirmed in 1997, Oregon's Death With Dignity Act has been in effect for less than nine months because of court challenges. At least four terminally ill people have used it to end their lives since a court injunction against the law was lifted Oct. 27, 1997. Vollmar, who has tracked the assisted-suicide issue closely, says opponents have developed a pattern of rolling out new strategies to stop the bill each time a previous one failed. "You have to admire their organization and their bag of ideas they have waiting in the wings. They certainly are doing battle," said Vollmar, who said she supports Oregon's law but speaks on the topic as a neutral observer. Groundwork for the congressional battle against assisted suicide was laid in June 1997 when the U.S. Supreme Court ruled that there is no constitutional right to assisted suicide and that the issue is up to each state to decide. Soon after the court's ruling, the National Conference of Catholic Bishops contacted Rep. Henry J. Hyde, R-Ill., to discuss whether assisted suicide might violate federal drug laws. Hyde and Sen. Orrin Hatch, R-Utah, raised the issue with the Drug Enforcement Administration. In November, the day after Oregonians defeated an attempt to repeal the assisted-suicide law, DEA Administrator Thomas Constantine sent a letter to Hatch and Hyde. Constantine wrote that he thought Oregon's law violated federal drug laws and that his agency could yank doctors' federal drug-prescribing privileges for giving terminally ill patients drugs to assist in suicides. Last month, U.S. Attorney General Janet Reno overruled Constantine, deciding the DEA lacks the authority to sanction doctors acting under Oregon's law. The day of Reno's announcement, Hyde, chairman of the House Judiciary Committee, introduced a bill that would amend federal drug laws to broaden the authority of the attorney general and hence the DEA. The Lethal Drug Abuse and Prevention Act of 1998 would set up a medical review board to deny, suspend or revoke a doctor's federal drug-prescribing privileges if the doctor prescribed or intended to prescribe drugs to assist in a suicide or euthanasia. The attorney general would name medical regulatory and pain relief experts to the board. Most physicians could not practice without their federal privileges, which enable them to prescribe powerful painkillers and sedatives used to treat everything from post-surgical pain to anxiety. Tuesday's first hearing on the bill will be before the House Judiciary Committee's subcommittee on the Constitution. Although the bill seemed to have broad initial support, the American Medical Association and the National Hospice Organization since have come out against it. Both groups oppose assisted suicide, but they fear that Hyde's bill would discourage the aggressive use of drugs to control pain, anxiety and other symptoms suffered by dying patients. Assisted-suicide supporters welcome these powerful groups as rare allies. Eli Stutsman, attorney for Oregon Right to Die, said opposition to the bill from the AMA helps establish its poor design. He said the bill's supporters are attacking assisted suicide indirectly through federal drug laws to avoid being blatant about their true intentions. "It's a naked attempt to interfere with what one state has done after a very extended process of debate," Stutsman said. But Dr. Gregory Hamilton, who will testify before the subcommittee as president of an anti-assisted-suicide group, Physicians for Compassionate Care, said Congress will hear plenty of support for the bill. Assisted suicide "is not just a parochial issue for Oregon," he said. "It's a major way of viewing humanity that is inconsistent with the principles of our Constitution." Vollmar thinks the opposition from organized medicine, however, could doom the legislation. "If it was just Oregon people, maybe they would ignore us. But it's a lot harder to go against the AMA," she said. Meanwhile, assisted-suicide opponents will be in Eugene on Monday to ask Hogan to reinstate a lawsuit arguing that the Death With Dignity Act is unconstitutional. Hogan blocked the Oregon law after voters approved it in 1994. He later declared it unconstitutional on the grounds that it did not have adequate safeguards. But in 1997, the 9th U.S. Circuit Court of Appeals overturned Hogan, saying the plaintiff did not have standing to sue because the law did not injure her. Janice Elsner, who has muscular dystrophy, had argued that she might use the law in a state of depression, even though she was morally opposed to assisted suicide. But the 9th Circuit said her argument was hypothetical. In order to have standing to sue in federal court, plaintiffs must prove that the laws they seek to overturn actually injure them. The U.S. Supreme Court refused to hear an appeal. In October, the 9th Circuit dismissed the suit, and the law was put into effect. Elsner's attorneys asked Hogan for another chance. They said that because the Death With Dignity Act allowed only the terminally ill to kill themselves, it stigmatized them as having lives less worth living than everyone else. Assisted-suicide supporters say that it's too late to raise a new argument for standing and that, in any case, the "stigmatic injury" argument does not overcome the 9th Circuit's objections to the suit. Because of a series of delays, Hogan has yet to decide whether he will allow Elsner's attorneys to reinstate the case. He's also considering motions to add a terminally ill plaintiff, Troy Thompson, who has Lou Gehrig's disease, to the suit and certify it as a class action. Although Hogan could issue another injunction, blocking the law, Monday's hearing is expected to consist only of oral arguments on the procedural motions before the court. None of the attorneys involved in the case expects Hogan to rule on those preliminary matters from the bench. "Most commonly, judges take things under advisement and then issue their opinion later," said Richard Coleson, one of Elsner's attorneys, who is affiliated with the National Right to Life Committee. But Thompson, who is immobilized by his disease and communicates using his eyes, and his wife, Marilyn Thompson, are hoping for the best. The couple sent an e-mail to friends and supporters asking them to pray for Hogan's wisdom and for the Thompson family. Marilyn Thompson said she expects perhaps a dozen supporters to come to the hearing in Hogan's court. "I hope he's got enough information that he can make a decision in our favor," Marilyn Thompson said. - ---