Oregon Death with Dignity Attorney Asserts Ashcroft in Violation of Executive Order on Federalism

Briefs Filed on Behalf of Oregon Physician and Pharmacist

Jan. 22, 2002

PORTLAND, OR � Attorneys working collaboratively to protect Oregon�s Death with Dignity law have identified a 1999 Executive Order on Federalism that further demonstrates Attorney General John Ashcroft has overstepped his authority in trying to undo Oregon�s law. (For copies of the Executive Order please contact Greg Eddleston (503) 228.6079).

The document, Executive Order 13132 issued on August 4, 1999 by then-President Clinton, is six pages of legal text rooted in the Constitution of the United States reiterating, �The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy.�

The Executive Order also states �the national government should be deferential to the States� and very clearly articulates procedures the national government should follow to include the states in any rulemaking, policies or decisions that affect State law directly.

�This Executive Order underscores the absurdity of the Ashcroft ruling in Oregon � that the most conservative Attorney General in memory would be in violation of laws regarding Federalism illustrates the lengths he is willing to go to undermine the will of the people of Oregon,� said Eli Stutsman, the Portland attorney representing the physician and pharmacist in a case sponsored by the Oregon Death with Dignity Center.

In addition to the recent discovery of this Executive Order, Stutsman filed briefs outlining the totality of the case against Ashcroft on behalf of Salem physician Peter Rasmussen and pharmacist David Hochhalter.� The physician and pharmacist are directly threatened with prosecution by the Ashcroft ruling, thus potentially affecting their ability to continue their work with patients who would seek an end to terminal suffering under Oregon�s law. A Temporary Restraining Order currently gives Oregonians relief from the Ashcroft ruling until the case is decided.

The case supported by Oregon Death with Dignity Center on behalf of physicians and pharmacists argues that:

1. The CSA does not apply. The Controlled Substances Act created a �closed system� intended to prevent trafficking and diversion and physicians and pharmacists who practice under the Death with Dignity Act are in full compliance with the state�s standard of care and are not trafficking or diverting drugs.

2. The DOJ cannot change previous rulings in this manner. The Attorney General violated the Administrative Procedures Act by attempting to promulgate a substantive regulation (or amend an existing regulation) without following the mandatory notice and comment procedure.

3. Ashcroft pushes federal v. state limits.� The CSA lacks the requisite �clear statement� that the Supreme Court has required before it will find that Congress intended to alter the federal-state framework � in this case by permitting federal encroachment into area traditionally reserved to the states.

4. Ashcroft abuses commerce clause.� The manner in which Oregonians die is not interstate commerce, nor may the federal government use a trivial connection to commerce to justify a heavy-handed federal intrusion into areas traditionally reserved to the states.� The states are capable of addressing this issue themselves, and should be permitted to do so, as the Supreme Court contemplated in Washington V. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2275 (1997).

5. Ashcroft is in violation of Executive Order 13132 on Federalism. As stated above, Ashcroft�s ruling violates this Executive Order reiterating the principles of Federalism as outlined in the U.S. Constitution.

Data on the fourth year of Oregon�s law is expected in early February from the Oregon Health Division.�� Since the law went into effect, it has been a source of great comfort to many patients and families and has helped Oregon lead the nation in improvements to end-of-life care:

• Oregon leads the nation in use of medical morphine to control pain
• Hospice rates in Oregon are double the national average
• 70 terminally ill people, mostly cancer patients have used the law in three years, all had insurance and access to hospice
• More Oregonians die at home surrounded by family than alone in institutions when compared to other states
• Physician professional education surrounding end-of-life issues is improved
• Oregon patients now have established the right to sue physicians if they do not receive a MINIMUM threshold of pain care

For more information about the law, statistics since implementation and its effect nationally, please consult Improvements in End-of-Life Care Surrounding Passage of the Oregon Death with Dignity Act, published annually by Oregon Death with Dignity Center. Copies can be obtained by calling (503) 228.6079 or by visiting www.dwd.org on the web.

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