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." Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=9871