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. Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=9183