January 18, 2006 - State suicide bill back in play

By Jim Puzzanghera

Mercury News Washington Bureau

Wednesday, January 18, 2006

WASHINGTON - The Supreme Court's decision Tuesday to uphold Oregon's unique assisted-suicide law opens the door for California to pass similar legislation this year allowing doctors to prescribe life-ending drugs to terminally ill patients.

A bill that would have made California the first state to join Oregon in permitting physician-assisted suicide passed two Assembly committees last year, but sponsors pulled it before a full vote because of lack of support. Some legislators wanted to wait until the Supreme Court ruled on the Oregon law, which is the model for California's, and Tuesday's decision should provide momentum for passage, said Assemblyman Lloyd Levine, D-Van Nuys, leading backer of the bill.

``The Supreme Court vote gives them a little more comfort to say, `Society is changing. This is OK. This is not an evil thing,' '' Levine said.

A Field Poll in March showed that 70 percent of Californians supported allowing incurably ill patients to receive life-ending drugs. But Gov. Arnold Schwarzenegger would not say Tuesday whether he would sign an assisted-suicide bill.

``I really have to see the idea. I have to just see the way it is written,'' he told reporters.

Schwarzenegger's staff has indicated that he is ``open'' to the idea of an assisted-suicide law, Levine said. He predicted supporters would be able to persuade the governor to sign the bill if it passed the Legislature.

But opponents vowed to continue fighting. They argued that the Supreme Court based its decision on a state's right to regulate medicine and did not endorse assisted suicide.

The Supreme Court's ruling did not address the complicated moral issues surrounding assisted suicide. Instead, it focused on the legal interpretation of the attorney general's power under the 1970 Controlled Substances Act.

Over the dissent of its most conservative members, the court ruled 6-3 that former Attorney General John Ashcroft overstepped his authority when he threatened to use federal drug laws to override Oregon's law in 2001. The Bush administration argued Ashcroft had the authority to threaten to revoke the prescription-writing privileges of doctors who assisted patients in committing suicide.

Oregon voters twice passed the Death With Dignity Act, which took effect in 1997. It allows doctors to prescribe lethal drugs to mentally competent, terminally ill patients who request them. According to statistics released last year, 208 people have used the law to commit suicide.

The state of Oregon, joined by a physician, pharmacist and some terminally ill patients, challenged Ashcroft's action and a lower court issued an injunction. The 9th U.S. Circuit Court of Appeals in San Francisco ruled in Oregon's favor in 2004. Writing for the Supreme Court majority, Justice Anthony Kennedy upheld the ruling, saying Congress did not intend for the 1970 law to override the traditional role of states to regulate medical practice within their borders.

The Controlled Substances Act allows Congress to intervene only to prevent doctors from distributing illegal drugs, Kennedy wrote in a decision joined by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, John Paul Stevens and the retiring Sandra Day O'Connor.

Accepting the Bush administration's argument in the assisted-suicide case would have given the attorney general broad powers over doctors and would ``effect a radical shift of authority from the states to the federal government to define general standards of medical practice,'' Kennedy said.

New Chief Justice John Roberts dissented -- his first since joining the court. He joined Antonin Scalia and Clarence Thomas in agreeing with Ashcroft that assisted suicide is not a ``legitimate medical purpose.''

``If the term `legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death,'' Scalia wrote for the dissenters.

But Scalia, who traditionally supports states' rights, acknowledged that the issue hovered in the background of the Oregon case.

``The court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business,'' he wrote. ``It is easy to sympathize with that position.''

The White House was ``disappointed'' with the court's decision, said press secretary Scott McClellan.

The American Life League also objected to the ruling, lamenting that it ``will likely be used as another vehicle to further the culture of death.''

Conservative and some religious groups have opposed assisted suicide for moral reasons. Many disabled-rights groups also oppose the practice because they say it sends a message that life is not worth living after the loss of mental or physical capabilities.

``Assisted suicide is bad policy,'' said Marilyn Golden, a policy analyst with the Disabled Rights Education and Defense Fund in Berkeley.

Supporters of assisted suicide said they are just trying to give terminally ill patients the right to determine when and how they die. They hope that the Supreme Court ruling leads more states, such as California, to consider legislation. Vermont is the only other state actively considering an assisted-suicide law, said Barbara Coombs Lee of Compassion & Choices, a group that represented 16 terminally ill Oregonians who challenged Ashcroft.

California's assisted-suicide bill is scheduled for a hearing by the Senate's Judiciary Committee in March, Levine said. Another leading backer, Assemblywoman Patty Berg, D-Santa Rosa, said the legislation has popular support.

But, she admitted, ``We still have some convincing to do'' in the Legislature.

Mercury News Staff Writer Laura Kurtzman contributed to this report.