X-Message-Number: 9871
Date: Sun, 07 Jun 1998 11:10:14 -0700
From: David Brandt-Erichsen <>
Subject: Oregon update

from THE OREGONIAN
(June 6/98)

   OPPONENTS HOPE TO RENEW LEGAL CHALLENGE

   The judge whose previous ruling was overturned will decide if the law
                      stigmatizes the terminally ill

                 By Ashbel S. Green of The Oregonian staff
     _________________________________________________________________

     While Congress contemplates quick legislative action against
     Oregon's doctor-assisted suicide law, a legal attack is simmering
     in Eugene.

     U.S. District Judge Michael R. Hogan has scheduled a July 14
     hearing to consider a request by assisted-suicide opponents to
     restart their legal challenge to the Oregon law.

     In November 1994, Oregon voters approved an initiative legalizing
     physician-assisted suicide for terminally ill people. Opponents
     went to court. In August 1995, Hogan overturned the
     assisted-suicide law, ruling that it lacked proper safeguards to
     satisfy the equal protection clause of the U.S. Constitution.

     But the 9th U.S. Circuit Court of Appeals in February 1997
     overturned Hogan on grounds that the woman who challenged the law
     lacked legal standing to do so.

     In essence, the 9th Circuit ruled that Janice Elsner, who suffers
     from muscular dystrophy, was not injured by the law because she had
     no intention of using it. Standing to sue requires an injury, not
     just a philosophical disagreement.

     The U.S. Supreme Court in October 1997 refused to hear an appeal of
     the 9th Circuit ruling.

     On Oct. 27, 1997, days before Oregon voters reaffirmed legalized
     assisted suicide at the polls, the courts lifted the injunction.
     But Hogan agreed to consider arguments by Elsner's lawyers that she
     had standing to sue because the law stigmatizes terminally ill
     people as having lives less worth living.

     "Because people who are terminally ill are treated differently and
     adversely, they have standing," said James Bopp Jr., an Indiana
     attorney representing Elsner. "They have been stigmatized because
     they are treated differently and adversely."

     David Schuman, deputy Oregon attorney general, said Hogan should
     not accept the argument for three reasons: The 9th Circuit already
     rejected it. If the 9th Circuit did not explicitly reject it, it's
     too late for the plaintiffs to raise it. "And three, it's an
     utterly worthless argument," Schuman said.

     The Oregon legal community has generally had the same reaction to
     the "stigmatic injury" argument.

     "I think the argument is extremely far-fetched," said Garrett Epps,
     a professor at the University of Oregon Law School.

     But that doesn't mean Hogan can't accept it.

     "He has the power to do it," Epps said. "There is no living human
     being who can stop him before the fact."

     If Hogan rejects the argument, Bopp, an attorney for National Right
     to Life, could find another plaintiff and file a new lawsuit. If
     Hogan accepts the argument and issues an injunction, the state
     could appeal to the 9th Circuit.

     There's another way that Oregon's assisted suicide law could wind
     up in court: If Congress outlaws it, Oregon could file a lawsuit.

     "It would certainly be easy to come up with a legal argument to the
     effect that this was beyond Congress's power," said Nelson Lund, a
     professor at George Mason University School of Law. "But you'd
     really be in uncharted waters."

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