Court lists injunction; suicide law in effect

The move goes unnoticed for more than a week

By Mark O'Keefe and Ashbel S. Green, The Oregonian, Nov. 5, 1997

The nation's first doctor-assisted suicide law apparently has been in effect for more than a week, although virtually no one realized it.

A three-year legal battle over the law ended quietly Oct. 27, when the 9^th U.S. Circuit Court of Appeals lifted an injunction that had been blocking the law. But even lawyers involved in the closely watched case didn't figure it out until Tuesday, hours before voters reaffirmed assisted suicide.

The law "is now operational," David Schuman, Oregon's deputy attorney general, said Tuesday afternoon.

A day earlier, Schuman and other lawyers in the case had said they were unsure whether a federal judge might lift the injunction blocking the law in a few days or weeks.

"I'm shocked, absolutely shocked." said Gayle Atteberry, executive director of Oregon Right to Life, which helped finance the lawsuit that prompted the injunction.

National Right to Life and the Oregon Catholic Conference had backed the lawsuit. James Bopp, a Terre Haute, Ind., lawyer who argued the case, also said he was caught off-guard.

"The 9^th Circuit is known for its high-handedness. They get regularly trashed by the Supreme Court because of it," said Bopp, who represents Right to Life organizations.

Measure 51, which Oregon voters were rejecting by a ratio of 3-to-2, would have repealed a law that has been tied up in court since voters approved it in 1994.

Unless assisted-suicide opponents come up with another legal maneuver, terminally ill patients could begin ending their lives in as little as 15 days.

Bopp would not say when or if he would go back to court, but he suggested his client might be the child of a terminally ill person who wanted to end his or her life.

Bopp's choice of client is key because the 9^th Circuit Court ruled that plaintiffs in his 1994 lawsuit did not have legal standing to sue.

Bopp, representing a woman with muscular dystrophy and two doctors, argued that the law lacks adequate safeguards. For example, the suit says, the law does not require psychiatric evaluation in every case.

U.S. District Judge Michael Hogan of Eugene agreed, ruling in August 1995, that Measure 16 unconstitutionally discriminated against the terminally ill by depriving them of legal protection against assisted suicide.

The state and Oregon Death with Dignity, sponsor of Measure 16, appealed to the 9^th Circuit Court, which overturned Hogan's decision in February, 1997.

The appeals court did not decide the merits of the case but ruled 3-0 that none of the plaintiffs had standing. The court said it was speculation that doctors or patients might participate in a suicide against their will, so they had no standing to challenge the law.

Suicide opponents appealed to the U.S. Supreme Court, which decided not to take the case.

The typical procedure in cases such as this is for the 9^th Circuit Court to order Hogan to life his injunction. Such a process would take weeks and stretch out after the Nov. 4 election.

But instead, the 9^th Circuit Court lifted the injunction itself Oct. 27. Hogan received the order four days later and mailed notices to the parties.

"The usual procedure is they would have sent something to Judge Hogan and asked him to take the ordinary steps," Schuman said. "What they did is, they took the steps themselves."

Eli Stutsman, a lawyer for Death with Dignity, said he received his notice from the 9^th Circuit Court on Monday. After studying it, he concluded that it meant the court had taken the unusual step of lifting the injunction.

Stutsman said he contacted the Oregon attorney general's office, and lawyers there met Tuesday and decided Measure 16 was in force.

"No lawyer had determined that the statute was in effect until" Tuesday, Stutsman said. "There's been a lot of confusion."

Asked why the attorney general's office hadn't realized earlier that the injunction was lifted, Peter Cogswell, a spokesman for the attorney general's office, said" "It's something we should have picked up on."

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