ASHCROFT’S MISDIRECTIVE

Attorney General John Ashcroft is a straight arrow if there ever was one. His strong personal principles include support for the death penalty and support for a constitutional amendment banning abortion. On the abortion issue, he has pledged as the nation’s chief law enforcement officer to enforce current law regardless of his own personal views. His Justice Department has vigorously prosecuted attacks on abortion clinics.

When it comes to Oregon’s law permitting doctors to assist in suicide (under strictly specified conditions), however, Mr. Ashcroft summarily overrode the will of Oregon voters and ordered doctors to halt the practice. Fortunately for Oregon and for constitutional government in general, U.S. District Judge Robert Jones ruled that Mr. Ashcroft had overstepped his authority.

(In Maine, a bill for a similar law died in committee in February 2000. In the November election of that year, the issue was narrowly defeated by 51 percent of the persons voting.)

In the Oregon decision, Judge Jones starts right out in his introduction by saying: “On Nov. 6, 2001, with no advance warning to Oregon representatives, Attorney General John Ashcroft fired the first shot in the battle between the State of Oregon and the federal government over which government has the ultimate authority to decide what constitutes the legitimate practice of medicine.” Oregon’s Death with Dignity Act had been approved twice by the state’s voters and had become effective in October 1997. The “Ashcroft Directive,” a few lines published in the Federal Register, interpreted the U.S. Controlled Substances Act as prohibiting dispensing a controlled substance to assist suicide. Mr. Ashcroft declared that assisting suicide is not a “legitimate medical practice.” He warned that any physician that did so could face suspension or revocation of his or her license

Judge Jones wrote: “To allow an attorney general – an appointed executive whose tenure depends entirely on whatever administration occupies the White House – to determine the legitimacy of a particular medical practice … would be unprecedented and extraordinary.” He went on to accuse congressional opponents of physician-assisted suicide of going to the Bush administration for help after failing twice to persuade Congress to outlaw the practice.

The Justice Department has said it is reviewing the decision, but sources familiar with the case say the department already has decided to appeal. If it does, it may face an unfriendly Supreme Court. Judge Jones took a phrase right out of a 1997 Supreme Court decision when he wrote: “Through his directive, Ashcroft evidently sought to stifle an ongoing ‘earnest and profound debate’ in the various states concerning physician-assisted suicide.” In the 1997 case, the high court had been asked to overthrow Washington state’s statutory ban on physician-assisted suicide. The court declined to strike down the law, deferring instead to the state’s resolution of the debate.

Justice Sandra Day O’Connor, in a concurring opinion, wrote: “There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the state’s interests in protecting those who might seek to end life mistakenly or under pressure.”

So Mr. Ashcroft has been told firmly by a federal judge that he overstepped the limits on his powers in trying to impose his own personal morality. It looks as if the Supreme Court could agree.