In the late 1980’s and early 1990’s, Oregon State Senator Frank Roberts, suffering from prostate cancer, introduced three physician-assisted dying bills (1989, 1991, and 1993). None of these bills got out of committee, but they became templates for later bills. Voters in Washington (1991) and California (1992) rejected similar ballot initiatives.
Businessman Elven “Al” Sinnard, attorney Eli Stutsman, JD, attorney Mark Trinchero, JD, Dr. Peter Goodwin, MD, and nurse Myriam Coppens established the political committee Oregon Right to Die and brought together various stakeholders to review drafts of the bill that would be placed on the ballot the following year. Later nurse-attorney Barbara Coombs Lee, RN, JD, and attorney Cheryl K. Smith, JD, joined the core group. Stutstman was the law’s lead author, drafting it together with Sinnard and Dr. Goodwin; Sinnard, Dr. Goodwin, and Coombs Lee were selected to be the chief petitioners.
Unlike Initiative 119 in Washington in 1991 and Proposition 161 in California in 1992, Oregon’s Measure 16 expressly prohibited euthanasia by lethal injection. On November 8, 1994, Oregon voters approved Measure 16, Oregon Death with Dignity, by a margin of 51.31% (627,980 votes) to 48.69% (596,018 votes). Oregon thus became the first US state with a physician-assisted dying statute. Measure 16 is regarded as one of the most controversial ballot measures in Oregon’s history. Despite its passage, implementation was delayed by court challenges for several years.
In December 1994, the case Lee v. State of Oregon became the Oregon law’s first legal challenge.* The plaintiffs in the case were doctors and patients who contended that the Oregon statute violated the Constitution’s First and Fourteenth Amendments as well as several federal statutes. US District Court Judge Michael R. Hogan placed a temporary injunction on the implementation of the Act.
Eli Stutsman created the Oregon Death with Dignity Legal Defense and Education Center to defend and promote the new law.
In August, Judge Hogan made the injunction on the implementation of the Oregon Death with Dignity Act permanent. The ruling was immediately appealed to the US Circuit Court of Appeals.
In February, the Ninth Circuit Court of Appeals ruled, in Lee v. Oregon, to dismiss the challenge to the Death with Dignity Act—another victory for Oregon’s new law.
Attempts in the Oregon legislature to nullify the law culminated in Measure 51, Oregon Repeal of Death with Dignity, which asked the voters to repeal the 1994 Act. In the November 4 election, the measure failed by a larger margin than the margin by which Measure 16 had passed, 59.91% to 40.09% (666,275 to 445,830 votes). Exit polls revealed that 72% of Democrats, 51% of Republicans, and 83% of nonaffiliated Independents supported the Act. Support also cut across gender lines (60% of women and 70% of men). Although the majority of Catholics (56%) and Protestants (60%) voted against the repeal, it was “no religion” voters who voted against it overwhelmingly (89%).
The tired argument that Measure 16 was passed by too slim a margin in 1994 became irrelevant.
Some members of US Congress tried to block implementation of Measure 16, but failed. Senator Orin Hatch (R-Utah) and Representative Henry Hyde (R-Illinois) urged the US Drug Enforcement Administration to investigate and penalize doctors who prescribe federally controlled drugs for dying patients to hasten their death. In December, DEA Chief Thomas Constantine said that Oregon physicians participating under the law’s guidelines would be in violation of the Controlled Substances Act (CSA). US Attorney General Janet Reno agreed to review the matter.
In April, AG Reno issued a reversal of the DEA’s position, saying that the Department of Justice would not prosecute physicians who had assisted in their patients’ deaths in compliance with the Oregon law. Reno argued that:
- The CSA was designed to prevent the illegal sale and diversion of drugs.
- The CSA was not intended to supplant individual states as the regulators of medical practice.
- The Oregon Death with Dignity Act, as written, was well beyond the regulatory purview of the CSA.
Congressional opponents to physician-assisted dying introduced the Lethal Drug Abuse Prevention Act (HR 4006/S 2151), designed to overturn the Oregon law, and Senator Don Nickles (R-Oklahoma) introduced it as an amendment to the 1998 Omnibus Spending Bill. President Bill Clinton said he would not sign the bill, and Senator Ron Wyden (D-Oregon) threatened to filibuster.
Newspaper editorials throughout the country attacked Congress’ attempt to overturn the will of Oregon voters. In addition, a coalition of 57 healthcare organizations opposed the Lethal Drug Abuse Prevention Act on grounds that it would prevent dying patients from receiving adequate pain management. The American College of Physicians-American Society of Internal Medicine helped lead the lobby against the Lethal Drug Abuse Prevention Act. Harold C. Sox, their president, wrote, “Ideology inspired this bill, and its chief sponsors didn’t seem to understand our concerns about the harm it might cause. But we could also see its defeat as an uplifting civics lesson: Many legislators changed their minds when they realized that the bill could put their constituents at risk.”
As legislators backed away, some of the bill’s co-sponsors dropped their support, and Senator Nickles withdrew his plan as the session came to a close.
The US House of Representatives passed the Pain Relief Promotion Act (PRPA) 271 to 156 to bar physicians from prescribing medications as allowed by the Oregon Death with Dignity Act.
National organizations, including the American Bar Association, the American Cancer Society, and the American Pain Foundation came out against the legislation, national editorial boards lambasted Congress’ assault on pain management, and President Clinton, a long-standing opponent of physician aid-in-dying, expressed reservations about the PRPA’s negative impact.
At the beginning of the US Senate session, passage of the PRPA appeared imminent. But opponents pressed for an honest examination of the bill’s true costs and intentions, and the PRPA failed to reach the Senate floor for a full vote.
On November 6, new US Attorney General John Ashcroft attempted to block the Oregon Death with Dignity Act by issuing his “Ashcroft Directive,” authorizing DEA agents to investigate and prosecute doctors who prescribe federally controlled drugs to help terminally ill patients die. Two days later, US District Court Judge Robert Jones issued an injunction against the Attorney General’s order until arguments would be heard.
In March, arguments regarding the Ashcroft Directive were heard in a US District Court.
On April 17, Judge Robert Jones ruled that the US Justice Department lacks the authority to overturn an Oregon law allowing physician-assisted deaths.
On September 23, AG Ashcroft filed an appeal with the US Ninth Circuit Court of Appeals.
On May 7, oral arguments were heard in the Ninth Circuit Court of Appeals in Oregon v. Ashcroft.
On May 26, the Ninth Circuit Court of Appeals ruled in favor of the Oregon Death with Dignity Act, asserting: “We hold that the Ashcroft Directive is unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress’ express legislative intent, and oversteps the bounds of the Attorney General’s statutory authority.” The Court thus affirmed that the “Attorney General lacked Congress’ requisite authorization” to suspend the license of doctors who prescribe drugs covered in the CSA under the Oregon Death with Dignity Act.
On July 12, AG John Ashcroft appealed the Circuit Court’s ruling and requested that an 11-member panel rehear Oregon v. Ashcroft. On August 11, the Circuit Court rejected Ashcroft’s request. On November 9, Ashcroft filed his petition with the US Supreme Court. Because his term was up, Ashcroft announced his retirement from the Department of Justice.
In February, the US Supreme Court granted the Department of Justice’s request for a hearing in Gonzales v. Oregon (formerly Oregon v. Ashcroft; Alberto Gonzales was Ashcroft’s successor as Attorney General). Oral arguments in Gonzales v. Oregon were heard on October 5.
The legal question in Gonzales v. Oregon was: “Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. 801 et seq., and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of a state law purporting to authorize such distribution.”
The US Department of Justice, represented by US Solicitor General Paul Clement, argued that:
- The CSA establishes a comprehensive and uniform national system for regulating controlled substances, and the Attorney General’s interpretive ruling implementing the CSA is supported by the overwhelming weight of authority.
- The Ninth Circuit Court of Appeal’s rejection of the Attorney General’s ruling was based on a fundamental misunderstanding of the applicable principles of statutory construction, i.e. was invalid.
The State of Oregon, represented by Senior Assistant Attorney General Robert Atkinson, argued that:
- The Attorney General’s threatened action would nullify the Oregon Death with Dignity Act.
- The CSA does not itself prohibit the uses of controlled substances permitted by the Act, and it does not authorize the US Attorney General to do so.
- The Court should reject this unprecedented attempt by a federal agency to resolve an issue that is reserved to the states; reemphasize the vital role state sovereignty plays in our federal system; and call on Congress to speak clearly when it intends to interfere with the states’ role.
On behalf of Death with Dignity National Center, Eli D. Stutsman, JD, a board member and co-author of Oregon’s Death with Dignity law, was Counsel of Record, representing the physician and pharmacist named in the Supreme Court case. He argued that:
- The Attorney General’s enforcement directive violates the plain language of the CSA; oversteps the bounds of the Attorney General’s statutory authority; and contravenes Congress’s express legislative intent.
- The states, not the Attorney General acting through the CSA, regulate medicine.
- The power to regulate commerce between the States does not authorize federal usurpation of medical practice in the states, or the manner in which Oregonians die.
On January 17 the Supreme Court voted 6 to 3 to uphold the Oregon physician-assisted suicide law in the case Gonzales v. Oregon, ruling that former AG John Ashcroft overstepped his authority in seeking to punish doctors who prescribed drugs to help terminally ill patients end their lives. The Supreme Court said that the Oregon law supersedes federal authority to regulate physicians and that the Bush administration, via Ashcroft, improperly attempted to use the CSA to prosecute Oregon physicians who assist in patient suicides.
In the majority opinion, supported by Justices O’Connor, Stevens, Souter, Bader Ginsburg and Breyer, Justice Kennedy wrote that the federal government can regulate prescriptions through the CSA but only in relation to prohibiting doctors from engaging in illegal drug dealing. “Beyond this, the statute manifests no intent to regulate the practice of medicine generally, [T]he authority claimed by [Ashcroft] is both beyond his expertise and incongruous with the statutory purposes and design,” Kennedy wrote. He further stated that had the Bush administration’s position been upheld, it would have “delegate[d] to a single Executive officer the power to effect a radical shift of authority from the states to the federal government to define the medical practice in every locality.” He added that, when Congress passed the CSA, it “did not have this far-reaching intent to alter the federal-state balance.”
On August 4th, US Senator Sam Brownback (R-Kansas) introduced the Assisted Suicide Prevention Act, which would prohibit doctors from prescribing federally-controlled substances for the purpose of physician-assisted suicide. However, on September 6, Ron Wyden (D-Oregon) moved to block Senator Brownback’s attempt to derail Oregon’s landmark law. Wyden announced he would block the bill indefinitely through a legislative hold. The bill was withdrawn.
Since then the Death with Dignity Act has been a stable, unchallenged part of Oregon statutes.
Eighty percent of Oregonians support the Death with Dignity Act.
* For the structure of the federal judiciary, see this overview.