X-Message-Number: 7782
Date: Sat, 01 Mar 1997 07:57:33 -0700
From: David Brandt-Erichsen <>
Subject: Oregon Measure 16 upheld?
I held up on posting this for a while because none of the news stories
stated what effect this court ruling has on whether or not, or when, Oregon
Measure 16 might take effect. I'll post that information as soon as I am
able to obtain it (if anyone else knows, please let me know). The following
is the most informative of the stories I have seen so far.
From February 28 Los Angeles Times
AIDED-SUICIDE LAW CLEARS COURT HURDLE
Ruling: Federal panel rejects
challenge to Oregon measure that allows doctors
to help patients.
By HENRY WEINSTEIN, Times Legal Affairs Writer
A federal appeals court in San Francisco on
Thursday rejected a lawsuit challenging Oregon's
first-in-the-nation law permitting
physician-assisted suicide for mentally
competent, terminally ill patients.
The 3-0 ruling by the U.S. 9th Circuit
Court of Appeals said that the suit must be
dismissed because the individuals and
organizations challenging the law could not
demonstrate that they face an imminent threat of
harm.
Oregon's law was enacted by a margin of
52%-48% in 1994 in a hotly contested ballot
initiative. Before the law could go into effect,
it was challenged by a group of terminally ill
patients who said they feared being cajoled into
taking their own lives against their wills and by
doctors and hospitals objecting to participation
in assisted suicide.
In 1995, U.S. District Judge Michael Hogan
in Eugene issued an injunction preventing the
statute from going into effect. Subsequently, he
declared the law unconstitutional, saying that it
lacked adequate procedural safeguards for
terminally ill individuals who are mentally
incompetent.
But on Thursday, the appeals court
unanimously reversed Hogan's decision and ordered
him to dismiss the lawsuit challenging the law.
The statute allows Oregon residents to ask
for suicide medication if their doctors determine
that they have less than six months to live.
A second physician must determine that the
patient is mentally competent and not suffering
from depression. The patient must make a written
request for the medication, signed by two
witnesses, 48 hours before the doctor delivers
the prescription, and repeat the request orally
before the prescription is written.
The appeals court said that there was no
immediate prospect that the one surviving patient
in the case, Janice Elsner, might end her life
against her wishes because of some flaw in the
Oregon statute.
Elsner suffers from a progressive form of
muscular dystrophy "and has already lived longer
than doctors expected," according to the opinion
by Judge Melvin Brunetti of Reno, Nev. The judge
said that Elsner has had clinical depression that
resulted in ambivalence about whether she wanted
to continue living.
Consequently, Elsner asserted that there was
a possibility that "she will take her own life
against her true intent."
But in order for that to occur, the court
said, there would have to be a lengthy chain of
seven events, including Elsner's becoming
clinically depressed to the point of being unable
to make an informed decision to take her own
life, or being unduly influenced by a third party
to take her own life.
Additionally, the judges said that Elsner's
attending and consulting doctors, neither of whom
is required under the law to be a psychiatrist or
psychologist, would both have to misdiagnose her
as being capable of making an informed decision.
The appeals court described the prospective
list of events as a "chain of speculative
contingencies." The judges then said that on the
record before them, the facts are insufficient to
permit Elsner to have standing to challenge the
law.
"First, as matter of quantitative
probability, the 'facts' only indicate that
terminally ill adults are at a greater risk of
depression than those who are not terminally ill,
and do not demonstrate that a significant number
of terminally ill adults have depression severe
enough to prevent them from making an informed
decision," Brunetti wrote.
"More importantly . . . our analysis on this
issue cannot be reduced to considering
probability merely in terms of quantitative
percentages, but must instead focus qualitatively
on whether the plaintiff has made an
individualized decision showing that there is a
very significant possibility that the future harm
will ensue," Brunetti added.
His decision was joined by Judges Alfred
Goodwin of Pasadena and Samuel P. King of
Honolulu.
In summary, the appeals court said it was
premature to decide whether enforcement of the
law would violate anyone's rights. The court also
declined to discuss the possible effect of a
pending U.S. Supreme Court ruling on whether
terminally ill patients have a constitutional
right to physician-assisted suicide.
Thursday's ruling is particularly
significant because it is possible that Oregon's
law could go into effect even if the U.S. Supreme
Court overturns a 1996 9th Circuit decision
saying that mentally competent, terminally ill
adults have a constitutional due process right to
the assistance of a physician in hastening their
death.
That 1996 appellate ruling overturned a
Washington statute banning doctor-assisted
suicide. The individuals challenging that ruling
contend that such decisions should be left to the
states, not to judges. The high court could rule
that there is no due process right to
physician-assisted suicide, but depending on how
the Supreme Court decision is written, it would
not necessarily block Oregon's law from going
into effect.
Lawyers for the challengers said that they
will seek a stay of Thursday's decision pending
further appeals.
Attorney Richard Coleson of Terre Haute,
Ind., said he was very disappointed with
Thursday's ruling and the court's decision not to
rule on the merits of the Oregon law. "They
didn't say anything about whether the safeguards
are adequate," Coleson said.
Moreover, Coleson asserted that the way the
decision was framed meant that it would be
impossible for any living person to challenge the
statute. Coleson and his law partner, James Bopp,
contend that the Oregon law denies terminally ill
people equal protection of the law in Oregon
because the state has other statutes that permit
intervention to prevent suicide. Coleson said he
hoped that the Supreme Court's ruling on
physician-assisted suicide, expected in June or
July, will clarify this point.
Tim Shuck, a 48-year-old Portland resident
with AIDS, said he was pleased about the
decision. Shuck is one of several Oregon
residents who intervened in the case in support
of the law, represented by the American Civil
Liberties Union.
"This decision is welcome, but it came too
late for the other intervenors; two of them have
died since the case was filed," he said. "I've
always thought I should have this right if the
time comes.'
He added that his condition has improved
considerably during the past year as a result of
new medication and that he currently is not at
the "end stage" of his disease.
A group of Oregon legislators has introduced
a statute that seeks to repeal the Oregon law,
known as Measure 16. If the repeal bill--which is
strongly supported by the Oregon Right to Life
organization and the state's Catholic
Conference--passes, it would not only abolish the
statute, it would create a state agency called
the Office for Compassionate Care that would
offer alternatives to those nearing the end of
life, such as referrals to hospice care or pain
management clinics.
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