Battle over suicide help continues in federal court over Ashcroft challengeWith Oregon\'s Death with Dignity Act at issue, competing sides debate jurisdiction and voice concerns about palliative pain care.
Attorneys representing the U.S. Dept. of Justice, the state of Oregon and several dying patients had their day in court May 7 as three judges from the U.S. 9th District Court of Appeals listened to arguments over whether U.S. Attorney Gener al John Ashcroft had the right to ban the use of narcotics in assisted suicides.

Some medical experts believe the court\'s ruling could have significance beyond whether it allows Oregon\'s assisted-suicide law to stand. They say it also could affect state and federal jurisdiction over medical practices and the quality of palliative c are.

Assisted-suicide supporters say Ashcroft\'s attempts to overturn Oregon law by using the federal Controlled Substances Act usurps power from the state. But the action isn\'t unprecedented, according to Erin A. Egan, MD, an attorney and senior associate o f the Neiswanger Institute for Bioethics and Health Policy at Loyola University in Chicago. She said federal commerce laws were used in the civil rights movement to end segregation in public establishments.

"There is a precedent for using federal law to accomplish important social goals," she said. "So the question is more whether this is a warranted interference."

In Dr. Egan\'s opinion, it isn\'t.

"I think it is an attempt to promote a political agenda, and that states should retain the power to be the ultimate authority on the regulation of medical practice," she said.

Assisted-suicide opponent Ken Stevens, MD, a Portland oncologist and president of Physicians for Compassionate Care, said Ashcroft was not infringing on his state\'s right to regulate medicine. "The federal government has a uniform Controlled Substances Act, and Oregon is trying to exclude itself from the act," he said.

The executive director of the Christian Medical & Dental Assns., David Stevens, MD, said the Supreme Court ruled on a similar case when it struck down California\'s medical marijuana law. "We\'re not talking about the licensing of physicians here," h e said. "It was decided long ago that the federal government has the final say over controlled substances."

The PCC\'s Dr. Stevens also said he didn\'t think that an Ashcroft victory would have much of a long-term impact. "If the court holds for the attorney general\'s position, it will impact the drugs that can be used."

Other doctors disagree. Despite reassurances to the contrary, many still believe that end-of-life pain treatment may be a big loser if Ashcroft wins.

A threat to proper palliative care
Assisted-suicide opponent Daniel Sulmasy, MD, PhD, director of the Bioethics Institute at New York Medical College in Valhalla, said some opponents were worried what may happen if Ashcroft won.

"There is a legitimate fear that there will be a chilling effect and people will be afraid to use opioid analgesics," he said. "You could be opposed to assisted suicide and still be opposed to what Ashcroft is doing." (See Dr. Sulmasy\'s letter)

The Medical Society of the State of New York, which opposes physician-assisted suicide, filed a friend-of-the-court brief supporting Oregon and cited its concerns over state jurisdiction, palliative care and "fears of second-guessing by unqualified fed eral law enforcement personnel looking over physicians\' shoulders."

"There is no justification for this federal intrusion upon the states\' police powers," the brief states. It goes on to call palliative care "woefully inadequate" and predicts it will get worse if Ashcroft\'s directive is allowed to stand.

Dr. Egan agreed. "Physicians are anxious about the possibility of pain-control measures, particularly at the end of life, being misconstrued as hastening death. In my experience, a number of physicians are reluctant to use adequate pain-control measure s for fear of legal consequences."

If Oregon wins in the appellate court, Dr. Egan said she didn\'t think there would be much impact on physicians outside of the state. If Ashcroft wins, she said, there could be a negative impact on end-of-life care because doctors may interpret the ruli ng as a message that any protection offered by state laws is merely "illusory."

"Neither of these things may be actual results of a decision to overturn the lower court decision, but physicians will likely change their practice regardless," Dr. Egan said. "I think a pervasive chilling effect on provision of palliative care is inev itable if this