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U.S. Supreme Court

Roberts' debut: right-to-die case

The new chief justice jumps into the questioning in his first case on the bench.

By wire services
Published October 6, 2005

WASHINGTON - New Chief Justice John Roberts stepped forward Wednesday as an aggressive defender of federal authority to block doctor-assisted suicide, as the Supreme Court clashed over an Oregon law that lets doctors help terminally ill patients end their lives.

The justices will decide if the federal government, not states, has the final say on the life-or-death issue.

It was a wrenching debate for a court touched personally by illness. Roberts replaced William H. Rehnquist, who died a month ago after battling cancer for nearly a year. Three justices have had cancer and a fourth has a spouse who counsels children with untreatable cancer.

The outcome is hard to predict, in part because of the uncertain status of retiring Justice Sandra Day O'Connor. Her replacement may be confirmed before the ruling is handed down, possibly months from now.

Roberts repeatedly raised concerns that a single exception for Oregon would allow other states to create a patchwork of rules.

"If one state can say it's legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn't that undermine the uniformity of the federal law and make enforcement impossible?" he asked.

The Supreme Court eight years ago concluded that the dying have no constitutional right to doctor-assisted suicide. O'Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

The new case is a turf battle of sorts, started by former Attorney General John Ashcroft. Hastening someone's death is an improper use of medication and violates federal drug laws, Ashcroft said in 2001.

The legal question is whether Ashcroft acted within his authority when he decided that doctors would lose their federal prescription privileges if they followed the Oregon law's procedures and prescribed lethal doses of lawful medications for their terminally ill patients who wanted to end their own lives.

Oregon won a lawsuit in a lower court over its voter-approved law, which took effect in 1997 and has been used by 208 people.

The Supreme Court appeared sharply divided in hearing the Bush administration's appeal.

Justice Ruth Bader Ginsburg, who has had colon cancer, talked about medicines that make a sick person's final moments more comfortable. David Souter, in an emotional moment, said that it's one thing for the government to ban date rape drugs and harmful products but "that seems to me worlds away from what we're talking about here."

On the other side, Roberts and Antonin Scalia appeared skeptical of Oregon's claims that states have the sole authority to regulate the practice of medicine.

Roberts, 50, was presiding over his first major oral argument and took an active role in the debate. He raised concerns that states could undermine federal regulation of addictive drugs. He interrupted Oregon Senior Assistant Attorney General Robert Atkinson in his first minute, then asked more than a dozen more tough questions.

Roberts said the federal government has the authority to determine what is a legitimate medical purpose and "it suggests that the attorney general has the authority to interpret that phrase" to declare that assisted suicide is not legitimate. Roberts asked three questions of the Bush administration lawyer, noting that Congress passed one drug law only after "lax state treatment of opium."

"I was wondering if the new chief would hold back and wouldn't ruffle other people's feathers. It appears clear he's not waiting for anything or anyone," said Neil Siegel, a law professor at Duke University and a former Supreme Court clerk.

The two justices who indicated they were conflicted were Anthony Kennedy and Stephen Breyer. Breyer's wife counsels young cancer patients. Besides Ginsburg, the justices who have had cancer are O'Connor and John Paul Stevens.

"For me, the case turns on the statute. And it's a hard case," Kennedy told the Bush administration's lawyer, and later he asked about the "serious consequences" of curbing federal government authority in regulating drugs.

Solicitor General Paul Clement said, "If this court makes clear that state law can overtake the federal regime, I think it at least creates the potential for there to be a lot of holes in the regime."

If O'Connor is the deciding vote in the case, the court would probably delay the decision and schedule a new argument session after the arrival of the new justice. Dozens of spectators gathered outside the court, waving signs supporting and opposing the Oregon law. "My Life, My Death, My Choice," read one sign. "Oregon Law Protects Doctors - Not Patients," said another.

Oregon is the only state with an assisted-suicide law, but other states may pass their own if the court rules in the state's favor.

Information from the New York Times and the Associated Press was used in this report.

[Last modified October 6, 2005, 01:15:08]