March 2006 -The ACLU hailed the U.S. Supreme Court’s 6-3 ruling respecting the right of mentally competent, terminally ill persons to make end-of-life decisions in consultation with their doctors, and rejecting the federal government’s misguided effort to interfere with those decisions.

David Fidanque, Executive Director of the ACLU of Oregon, explained that the decision is especially gratifying because Justice Kennedy’s majority opinion acknowledged the careful crafting of Oregon law. The Court has accurately determined that intensely personal end-of-life decisions should be made by patients and families in consultation with their doctors, rather than by the government.

In Gonzales v. Oregon, formerly titled Ashcroft v. Oregon, the Supreme Court ruled against the U.S. government’s use of the Controlled Substance Act to thwart Oregon’s aid-in-dying law. The question before the Supreme Court was whether former Attorney General John Ashcroft exceeded his authority when he issued a directive that Oregon doctors who provide care to their patients under the Death with Dignity Act violate the federal Controlled Substances Act.

The clear intent of the directive was to nullify the Death with Dignity Act that Oregon voters have twice approved, and to deprive qualified patients of access to the medication that doctors consider to be the safest and most effective means of ending one’s life. The issue of whether terminally ill patients have a constitutional right to make end-of-life decisions was not directly before the Court. However, as the ACLU noted in its friend-of-the court brief, previous Supreme Court opinions have properly recognized the important constitutional interests at stake when terminally ill patients are confronted with end-of-life decisions.

Steven Shapiro, ACLU’s national legal director described the Court’s decision as a firm rejection of the Administration’s effort to impose a political agenda on the practice of medicine. The role of the Attorney General is to enforce the laws that Congress has written, not to rewrite the laws to suit the Administration’s own political objectives. The ACLU said it hopes that Congress will respect the spirit of the Court‘s opinion and reject efforts to amend federal law for the purpose of invalidating the Oregon’s statute. A previous attempt by Congress failed to pass because of a threatened filibuster by Oregon Senator Ron Wyden.

Attorneys on the brief included Shapiro; Charles Hinkle of Stoel Rives LLP as ACLU of Oregon’s cooperating attorney; and cooperating attorneys from the Washington, D.C. law firm of Mayer, Brown, Rowe & Maw LLP.

November 2005: ACLU helps defend Oregon Death with Dignity Act

In the United States, only Oregon has a statute permitting physician assisted aid in dying. In November of 2001, U.S. Attorney General John Ashcroft issued a directive aimed at nullifying Oregon’s landmark Death with Dignity Act through a radically new interpretation of the federal Controlled Substances Act (CSA). The State of Oregon, and others, sued A.G. Ashcroft in federal court to protect the Death with Dignity Act. The ACLU Foundation of Oregon filed an amicus brief urging the court to reject Ashcroft’s faulty interpretation and application of the CSA.

Ashcroft determined that the U.S. Attorney General had the authority to decide what a “legitimate medical purpose” is under the CSA and he decided that providing a controlled-substance for physician aid-in-dying is not a “legitimate medical purpose.” Under Ashcroft’s directive, an Oregon physician faced losing the ability to prescribe drugs if she chooses to provide aid-in-dying under the Oregon Death with Dignity Act.

The ACLU’s brief, written by volunteer attorney Charles Hinkle, argued that Ashcroft misinterprets his authority, the scope of the CSA, and the intent of Congress when it amended the CSA in 1984. Hinkle writes, “the federal government cannot use the ‘pretext’ of enforcing laws aimed at preventing the illicit use of controlled substances to intrude into an area that has always been regarded (both as a matter of tradition and as a matter of federalism) as within the exclusive responsibility and prerogative of the states (namely, regulation of the practice of medicine).”

On April 17, 2002 in a strongly worded opinion in State of Oregon; et al v. Ashcroft; et al., U.S. District Court Judge Robert E. Jones rejected U.S. Attorney General Ashcroft's arguments that he had the legal authority to determine what constitutes the legitimate practice of medicine when in comes to the use of schedule II substances regulated under the federal CSA. The ACLU of Oregon applauded the federal court decision, which was consistent with the arguments made by the ACLU of Oregon in its friend of the court brief. The Justice Department has brought the case to federal appeals court, which heard the case in May 2003.

The ACLU has a long history of protecting and advancing the right of individuals to have control of their bodies, from making choices regarding whether or not to have a child to making end-of-life decisions. The ACLU Foundation of Oregon represented a physician and patient in the first legal challenge to the Death with Dignity Act in 1994. The Death with Dignity Act passed into law in 1994 by public ballot measure vote.