X-Message-Number: 9183
Date: Thu, 19 Feb 1998 08:29:30 -0700
From: David Brandt-Erichsen <>
Subject: Oregon: Hogan not done yet, postpones to April

February 18, 1998 - Portland Oregonian

ASSISTED SUICIDE DECISION POSTPONED

Opponents of Oregon's law hope to revive their lawsuit
by adding a terminally ill cancer patient as a
plaintiff in the action

By Ashbel S. Green of The Oregonian staff
----------

EUGENE -- A federal judge on Tuesday put off
deciding whether to revive -- or dispatch --
a lawsuit seeking to block Oregon's
physician-assisted suicide law.

In the meantime, the law remains in effect,
but opponents of assisted suicide attempted
to strengthen their case by adding a
terminally ill Corvallis man as a plaintiff.

Peter L. Begin, a 57-year-old lung-cancer
patient, is seeking to join a 1994 lawsuit
against the Oregon law, a move that could fix
a key procedural problem with the litigation,
according to a legal observer.

"Adding this person breathes new life into
the lawsuit," said Arthur LaFrance, a
professor at Northwestern School of Law at
Lewis & Clark College.

Still, LaFrance said, opponents of assisted
suicide continue to face an enormous hurdle
in trying to convince the courts that
Oregon's law is unconstitutional because it
stigmatizes terminally ill people. Without a
viable lawsuit, opponents have no chance.

"Procedurally, you can't get the camel into
the tent if the camel's nose doesn't get
under it," he said.

Barbara Coombs Lee, a nonpracticing lawyer
and co-author of the Oregon Death With
Dignity Act, was unimpressed with her
opponents' new strategy.

"It sounds very desperate," she said. "It
sounds as though at the 11th hour, National
Right to Life slipped something to Judge
(Michael R.) Hogan that they hoped would
cause some sort of delay. But it doesn't seem
relevant to implementation of the Death With
Dignity Act. It is implemented. ... This case
is over, as far as I'm concerned."

As it stands, U.S. District Judge Hogan
probably will not rule on the case until
April.

Oregon voters approved the Death With Dignity
Act in 1994. The next year, Hogan ruled that
it violated the equal protection clause of
the U.S. Constitution. Last year, the 9th
U.S. Circuit Court of Appeals overturned
Hogan, saying the plaintiff, a woman
suffering from muscular dystrophy, had no
standing to sue because the law did not
injure her.

The U.S. Supreme Court refused to hear an
appeal.

In November, Oregonians overwhelmingly voted
not to repeal the law.

The same day, an attorney for National Right
to Life asked Hogan to revive the suit. The
attorney claimed that the 9th Circuit failed
to consider his argument that his client
suffered a "stigmatic injury" under the law.

Attorneys for the state and sponsors of the
Death With Dignity Act said opponents missed
their opportunity to make such an argument.
Hogan was set to settle the dispute Tuesday
but delayed the decision because of the
request to add Begin to the suit.

"This litigation should be over," said Eli
Stutsman, who has been fighting the lawsuit
for more than three years. "We've been to the
Supreme Court and back."

According to LaFrance, however, Begin gives
assisted suicide opponents the opportunity to
argue that they have a plaintiff who has not
yet made the "stigmatic injury" argument.

The argument, as made by James Bopp of
National Right to Life, is that Oregon's
assisted suicide law stigmatizes the
terminally ill as second-class citizens by
removing the protection from suicide that
other citizens enjoy.

Legal experts generally dispute Bopp's
attempt to use the "stigmatic injury"
argument, which the courts have recognized in
certain racial discrimination cases. But Bopp
faces a more immediate hurdle of persuading
Hogan to give him another chance after the
9th Circuit has already dismissed the case.
And that's where Begin could come in.

LaFrance said adding Begin as a new plaintiff
might solve the problem. "That's the
direction in which Bopp is going. And it's a
plausible direction for Judge Hogan,"
LaFrance said.

Bopp said he was prepared to file a separate
lawsuit on behalf of Begin but said it was
more efficient to add him to the existing
case.

Also, Begin appears to qualify for
physician-assisted suicide under the law
because he has a diagnosis of terminal
illness. In an affidavit, Begin, who opposes
assisted suicide, said a doctor has told him
he has less than six months to live.

In court Tuesday, Stutsman said the existing
plaintiff, Janice Elsner, is not terminally
ill.

Bopp said Begin contacted him late last week
about representing him. Begin could not be
reached for comment Tuesday. His wife, Evelyn
A. Begin, referred questions to Bopp.

Dr. John I. Gotchall, 39, a Corvallis
pulmonologist identified as Peter Begin's
doctor, was out of his office Tuesday
afternoon and could not be reached.

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