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Thursday, April 18, 2002 - Page updated at 12:00 AM

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Oregon assisted-suicide law upheld

Seattle Times staff reporter

PORTLAND — In a stern rebuke to Attorney General John Ashcroft, a federal judge yesterday upheld Oregon's assisted-suicide law, clearing the way for other states to decide whether to pursue similar laws.

Yesterday's ruling by U.S. District Judge Robert Jones is a clear victory for proponents of Oregon's first-in-the-nation assisted-suicide law, which in the past four years has been used by 91 terminally ill patients.

Accusing Ashcroft of trying to stifle an "earnest and profound debate" around the nation, Jones slapped the Justice Department with a permanent injunction to prevent the enforcement of a directive aimed at halting assisted suicide.

Jones also declared that Oregon physicians, pharmacists and other health-care providers will not be subject to criminal prosecution for any actions taken under the Oregon law.

"Today's victory is a complete victory," said Eli Stutsman, an attorney representing Oregon doctors and pharmacists. "The cloud we were operating under has been lifted."

But the legal and moral debate will not end with the ruling: U.S. Justice Department lawyers yesterday said they likely will appeal.

Physicians around the country, including Washington state, have closely tracked the clash between the Justice Department and Oregon. Though Washington's medical association is opposed to physician-assisted suicide, officials feared that Ashcroft's directive would have a chilling effect on administering painkilling drugs that might also hasten the death of terminal patients.

"We were all concerned — basically feeling that Ashcroft had overstepped his bounds and set a dangerous precedent," said Dr. Peter McGough, who chairs an end-of-life committee formed by the Washington State Medical Association.

Washington voters rejected an initiative in 1991 that would have allowed physician-assisted suicide.

Ashcroft tried to limit physician-assisted suicide by declaring that prescribing drugs to end a life was not a "legitimate medical purpose" under the federal Controlled Substances Act. But Jones, in his 30-page ruling, said it was up to states to determine what was legitimate and cited a Supreme Court ruling acknowledging the national debate on the "the morality, legality and practicality of physician-assisted suicide."

Assistant U.S. Attorney General Robert McCallum said he would recommend that yesterday's ruling be appealed to the 9th U.S. Circuit Court of Appeals. "Obviously we are disappointed and respectfully disagree with the ruling," McCallum said.

The Justice Department did not contest the use of drugs to relieve terminal pain but argued that the use of such drugs purposely to end a life should be outlawed.

An appeal might take years to work its way through to a decision.

In the meantime, Oregon's law will remain in effect. The law authorizes doctors to prescribe lethal amounts of drugs to terminally ill patients deemed by two doctors to be of sound mind and not under duress, with a life expectancy of six months or less.

Approved in two voter initiatives, the law went into effect in 1997 after clearing an initial legal challenge in federal court.

Hawaii now is considering an assisted-suicide law, but the measure is bogged down in the state Senate.

Washington state also has been a battleground for physician-assisted suicide. After the 1991 initiative failed at the polls, the Legislature passed a law specifically prohibiting physician-assisted suicide. Proponents of assisted suicide then launched a legal challenge that went all the way to the U.S. Supreme Court. A 1997 ruling by the Supreme Court upheld the state ban but said doctors did have a right to prescribe pain drugs which might hasten death so long as the intent was to relieve pain.

Since the Supreme Court ruling, there's been a search in Washington for common ground focusing on end-of-life care to relieve pain. "We all agree that there should be no barriers to effect pain management," said McGough, of the Washington State Medical Association.

Washington proponents of physician-assisted suicide say they support that goal, but some acknowledge that pain treatment sometimes ends up being a covert means of terminal sedation.

"We're saying let's take it out of the closet and call it what it is," said Robert Miller, executive director of the Washington chapter of Compassion in Dying, a group that consults on end-of-life options for terminally ill patients.

In Oregon, most terminally ill patients still forgo the lethal-prescription option. Currently, at least nine residents have lethal prescriptions they might use. A dozen more are seeking such prescriptions, according to George Eighmey, executive director of the Oregon chapter of Compassion in Dying.

After the release of yesterday's ruling, several terminally ill patients met with the news media.

Richard Holmes, a retired 72-year-old salesman with colon cancer that spread to his liver, is hoping to celebrate his birthday June 30. He has a small jar of liquid Nembutal that he obtained under the Oregon law.

Holmes said his physicians expected him to be dead by January, but he's still feeling pretty good. Clad in a blue beret and bright red pullover, he said he wasn't sure whether he'd use the drug but wanted the option. "It's freedom — and freedom of choice is important."

Also present was Jim Romney, 57, a former school principal diagnosed with amyotrophic lateral sclerosis, a fatal, debilitating illness better known as Lou Gehrig's disease.

Romney said he felt "liberated" by the court decision because it would allow him an alternative to a slow death as his bodily functions shut down.

But Romney, still in the early stages of the disease and fully capable of handling a fishing reel, said he would head out on the Columbia River to celebrate the ruling by catching a chinook salmon.

Hal Bernton can be reached at 206-464-2581 or hbernton@seattletimes.com.

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