THE PRESS DEMOCRAT

October 5th, 2005

By KERRY BENEFIELD
THE PRESS DEMOCRAT

Californians on both sides of the physician-assisted suicide debate are closely following the U.S. Supreme Court today as it considers a challenge to Oregon's pioneering statute.

The court's decision could seal the fate of Assembly Bill 651, Assemblywoman Patty Berg's legislation that would allow doctors in California to prescribe lethal doses to patients who want to end their lives and who have less than six months to live.

The Eureka Democrat's bill, modeled closely after Oregon's 8-year-old program, failed to garner the needed votes for passage in the past legislative session despite intense lobbying and a series of emotional public hearings. The California Medical Association is among the leading opponents.

Berg and co-author Assemblyman Lloyd Levine, D-Van Nuys, have vowed to renew their efforts when the Legislature reconvenes in January, but court watchers say the Supreme Court could short-circuit the move.

"If it is declared unworkable for any reason, that will very definitely place on the back burner what is going on in California," said Joe Stogner, an attorney and professor at Empire Law School. "There would be diminishing returns for investing political time, energy and capital in what would appear to be a dying form of legislation."

Berg contends a ruling from the high court could be months away so she will continue to push AB 651. The timeline could be further delayed by the pending retirement of Justice Sandra Day O'Connor and the vetting of President Bush's nominee, Harriet Miers.

"It's too early to talk about the effect" of the case, Berg said. She acknowledged, however, California lawmakers might steer clear of the politically thorny issue until the court rules.

"It may be used as an excuse not to deal with it, but I plan on not taking any 'no's,'" she said.

In the case being argued today, the court will not consider the basic issue of the constitutionality of physician-assisted suicide. In 1997, the court ruled patients do not have a constitutional right to hasten their own death, yet opened the door for states to craft their own legislation allowing the practice under strict regulation.

Today's case, one of the first tests for new Chief Justice John Roberts, is based on a specific challenge brought by the Bush administration contending Oregon's statute violates federal drug laws. Former U.S. Attorney General John Ashcroft led the charge against Oregon's law, warning doctors could lose their license to practice medicine if found to have prescribed drugs to assist suicide.

Some doctors say the case could have widespread fallout beyond the assisted-suicide debate.

"If the feds start weighing in and pressuring the docs not to use adequate pain control, we are going to have a lot of people in the dying process who are not going to get the comfort care they deserve," said J. Michael Gospe, a retired gastroenterologist who serves as medical director of ethics at Santa Rosa Memorial Hospital.

Gospe opposes Oregon's assisted suicide law and Berg's efforts in California, but he said if the Supreme Court finds federal drug regulations supercede state law, doctors may end up taking precautions to protect themselves against claims that prescriptions for pain were used to kill patients.

"A neighbor or relative or somebody out of state could come in and say 'You killed my best friend' and they are going to turn in the doctor to the authorities," he said.

Tim Rosales, spokesman for Californians Against Assisted Suicide, said the Supreme Court is considering too narrow a slice of the assisted-suicide debate. His group is a coalition of medical, religious and disability advocacy groups.

Rosales said that regardless of the legal argument in Washington, his group will continue to lobby lawmakers in California to scuttle AB 651.

"It's not simply just the administration of drugs that are the issue in assisted suicide," he said. "An early termination in the death of the person - that's what we are really focusing on."