Death with Dignity Law: Still Awaiting Ninth Circuit Ruling

Media Alert: the following is provided to media as a reminder that a ruling is anticipated soon in Oregon v. Ashcroft

May 7, 2004

Contact: Jeana Frazzini, (503) 228.4415 or Scott Swenson, (202) 969.1669

Portland, OR � One year ago today, a three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments in Oregon v. Ashcroft � a continuation of the legal case that began with the U.S. Attorney General�s intrusion into state regulated medical practices in November 2001.� This intrusion threatens not only Oregon�s Death with Dignity law but national end-of-life care and pain management for the terminally ill.�

The Death with Dignity National Center, one of the litigants in this suit, is the legal defense, public policy non-profit that formed in 1994 to defend the will of Oregon voters and replicate the DWD law as a model for end-of-life care reform.�

This case is about the state-regulated practice of medicine � not illicit drug use, trafficking or diversion as outlined under the Controlled Substances Act (CSA).� The Death with Dignity National Center, representing a Salem, OR, oncologist and pharmacist, advances the following principles in its case against the Ashcroft directive:

1. The explicit language of the CSA, the case law which interprets it, and the legislative record that supports it, all make clear that the Attorney General�s role is to regulate the manufacture, dispensing and distribution to prevent illicit use, diversion and trafficking.� Nothing contained in the CSA gives the Attorney General authority over the practice of medicine within the individual states.

2. Ashcroft relies upon a 1984 amendment to the CSA in order to target the State of Oregon and DEA registrants practicing under the Death with Dignity law.� This amendment does not empower the Attorney General to substitute his preferred medical policies for those of the State of Oregon.

3. Attorney General Ashcroft must persuade the court not only that his interpretation of the CSA is correct, but also that it was the intent of Congress to alter the state/federal framework in this instance by permitting federal encroachment into state-regulated medical practice.

4. Attorney General Ashcroft does not allege that physicians practicing under the Oregon law are diverting drugs for illegal use.� Indeed, the Attorney General concedes that Oregon practitioners are in compliance with the Oregon law.� Thus, no law is broken, no crime committed, no community standard of care violated.�

5. The Attorney General�s case is simply a policy disagreement with the State of Oregon over the practice of medicine.

Additionally, this year marks the 10th anniversary of the Death with Dignity law.� Events this summer in both Portland (July), and Washington, D.C. (September), have been planned to commemorate and celebrate this historic occasion.��

For up-to-the minute information on the Death with Dignity law, the litigation, efforts at end-of-life care reform in other states, and the anniversary events, please visit: www.deathwithdignity.org.

Spokespeople available for comment

Eli D. Stutsman (lead attorney for DEA registrants) is a practicing attorney in Portland, Oregon, is one of the drafters of the Oregon Death with Dignity law. He served as the lead political and legal strategist during the 1994 campaign to pass the Oregon Death with Dignity law and again during the 1997 campaign to defeat a legislatively inspired repeal effort. Mr. Stutsman successfully defended the Death with Dignity law in the first federal court challenge spanning 1994 to 1997, see Lee v. State of Oregon, 107 F.3d 1382 (9th Cir. 1997), cert den, 522 U.S. 927 (1997), and currently represents a physician and pharmacist against the Drug Enforcement Administration in the case of Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D.Or. 2002), appeal pending, Ninth Circuit Court of Appeals No. 02-35587.� Stutsman co-funded Oregon Right to Die, the political action committee that passed the Oregon Death with Dignity Act into law. He is also the founding president of the Oregon Death with Dignity Legal Defense and Education Center and the Oregon Death with Dignity Political Action Fund.

Dr. Timothy Quill a practicing primary care physician is Professor of Medicine, Psychiatry, and Medical Humanities at the University of Rochester, where he directs palliative care and biopsychosocial programs. Quill has lectured widely and published numerous articles, including the groundbreaking 1991 New England Journal of Medicine article about Diane, a dying individual who requested assistance in dying. Quill is the author of many books including, Caring for Patients at the End of Life: Facing an Uncertain Future Together, A Midwife through the Dying Process: Stories of Healing and Hard Choices at the End of Life and Death and Dignity: Making Choices and Taking Charge. Dr. Quill was the lead physician plaintiff in the New York State legal case challenging the law prohibiting physician-hastened dying (Vacco v. Quill).

Connie Holden is the former Executive Director of the Hospice of Boulder County and currently runs a health care service for breast cancer survivors. Ms. Holden is active with the International Work Group on Death and Dying and is a member of the Ethics Committee of the Boulder Community Hospital.

Betty Rollin is a contributing correspondent for NBC News and PBS' Religion and Ethics Newsweekly; she is also a best selling author. Two of her six books, First, You Cry and Last Wish, have been made into television movies. First, You Cry describes Rollin's experience with breast cancer and mastectomy; Last Wish recounts the story of her mother's request for help in dying.�

Scott Blaine Swenson is Executive Director of the Death with Dignity National Center, a nonprofit, and the Oregon Death with Dignity Political Action Fund, supporting Oregon�s first-in-the-nation death with dignity law allowing terminally ill people more control at the end of life. Swenson began his work on Oregon�s Death with Dignity Act at the Communications Consortium Media Center in Washington, D.C., during the Quill and Glucksberg U.S. Supreme Court cases and the second ballot initiative election in Oregon.� Swenson was instrumental in shaping strategies about communicating the implementation of Oregon�s law during its first two years and defending it from Congressional threats.� Swenson has worked with efforts to pass Death with Dignity laws in Maine, Hawai'i and Vermont.

For more information, please contact: Jeana Frazzini, (503) 228.4415 or Scott Swenson,
(202) 969.1669

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